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H U M A N
R I G H T S
W A T C H

THE ANSWER IS NO
Too Little Compassionate Release in US Federal Prisons

The Answer is No
Too Little Compassionate Release in US Federal Prisons

Copyright © 2012 Human Rights Watch
All rights reserved.
Printed in the United States of America
ISBN: 1-56432-969-0
Cover design by Rafael Jimenez

Human Rights Watch (HRW) is dedicated to protecting the human rights of people around
the world. We stand with victims and activists to prevent discrimination, to uphold political
freedom, to protect people from inhumane conduct in wartime, and to bring offenders to
justice. We investigate and expose human rights violations and hold abusers accountable.
We challenge governments and those who hold power to end abusive practices and
respect international human rights law. We enlist the public and the international
community to support the cause of human rights for all.
Human Rights Watch is an international organization with staff in more than 40 countries.
For more information, please visit our website: http://www.hrw.org.
Families Against Mandatory Minimums (FAMM), a nonprofit, nonpartisan organization,
fights for fair and proportionate federal and state sentencing laws that embrace judicial
discretion while guarding public safety. We mobilize thousands, including lawyers, judges,
criminal justice experts, and concerned citizens, to join prisoners and families whose lives
have been harmed by unjust sentences to work for change. FAMM’s vision is of a nation in
which sentencing is individualized, humane, and sufficient but no greater than necessary
to impose just punishment, secure public safety, and support successful rehabilitation
and reentry. Visit us at: http://www.famm.org.

NOVEMBER 2012

ISBN: 1-56432-969-0

The Answer is No

Too Little Compassionate Release in US Federal Prisons
Summary ........................................................................................................................................... 1	
  
Recommendations ............................................................................................................................ 8	
  
Methodology.................................................................................................................................... 15	
  
I. Background ...................................................................................................................................16	
  
Compassionate Release ........................................................................................................ 16	
  
A Narrow Interpretation of Compassionate Release ................................................................ 19	
  
The United States Sentencing Commission Guidelines ........................................................... 23	
  
II. Compassionate Release in Practice ............................................................................................. 28	
  
Compassionate Release Procedures ...................................................................................... 28	
  
Compassionate Release: The Numbers .................................................................................. 34	
  
III. Federal Policies on Compassionate Release ............................................................................... 40	
  
Medical Conditions ............................................................................................................... 45	
  
Non-Medical Grounds for Compassionate Release ................................................................. 49	
  
Foreseeability ....................................................................................................................... 52	
  
IV. Public Safety and Compassionate Release ................................................................................. 54	
  
Calculating Public Safety ....................................................................................................... 56	
  
Retribution, Sufficiency of Punishment, Nature of the Crime, Victims ...................................... 59	
  
Fear of Bad Publicity .............................................................................................................. 61	
  
V. Administrative Remedy ............................................................................................................... 63	
  
A Fair Process? ...................................................................................................................... 64	
  
VI. The Lack of Judicial Review ......................................................................................................... 68	
  
Seeking Direct Release .......................................................................................................... 68	
  
Review of the Failure to Act .................................................................................................... 68	
  
Challenging the Rules ............................................................................................................. 71	
  
New Challenges .................................................................................................................... 72	
  
VII. Human Rights and Compassionate Release ................................................................................75	
  
Acknowledgments ........................................................................................................................... 80	
  
Appendix ........................................................................................................................................ 82	
  

Summary
James Michael Bowers
James Michael Bowers was sentenced in 1990 to 30 years in prison for
conducting a continuing criminal enterprise and drug distribution.1 His lengthy
sentence also reflected his extensive and serious criminal history, including a
plan, which he had later abandoned, to hire a hit man to murder suspected
informants.
Eleven years later, Bowers was dying of prostate cancer that had spread to
multiple organs. Tumors obstructed his urinary tract and bowels, causing
Bowers acute and disabling pain. His doctors told him he had no more than six
months to live. The prison warden, however, turned down Bowers’ request for
compassionate release because even though he was dying, his criminal past
included “behaviors [that] could be repeated even in your state of illness;
thus, the safety of the public could be jeopardized by your release to the
community.”2 Bowers brought an administrative appeal to the warden, freely
admitting he had done “some terrible things”:
“I offer no defense to the bad things I did during that terrible
time…. I will never harm or wish harm on … anyone. I promise
you Warden, that’s not my purpose, and I have no strength or
inclination to even think of such things these days. I am a dying
man….”3
The warden denied the appeal, and Bowers died behind bars at age 63 while
his appeal to the Bureau of Prisons regional director was pending.

1 This account of the Bowers case was drawn from memorialized conversations and correspondence with his family and his

lawyer and from BOP documents on file at Families Against Mandatory Minimums.

2 Memorandum from Maryellen Thoms, Warden, to James M. Bowers, September 20, 2001.
3 Request for Administrative Remedy, from James M. Bowers, January 15, 2002.

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NOVEMBER 2012

New circumstances can make the continued incarceration of a prisoner senseless and
inhumane. Aggressive cancer may suddenly leave a prisoner facing death behind bars, as
James Michael Bowers’ case exemplifies. Old age may so whittle a prisoner’s body and
mind that he cannot dress, eat, or bathe by himself. An accident may claim the life of a
prisoner’s husband, condemning their young children to foster care when there is no
family to look after them.
In 1984, Congress granted federal courts the authority to reduce sentences for just such
“extraordinary and compelling” circumstances, after taking into account public safety and
the purposes of punishment. It assigned to the United States Sentencing Commission (USSC,
Sentencing Commission) the responsibility to describe what those circumstances might be.
Congress authorized what is commonly called “compassionate release” because it
recognized the importance of ensuring that justice could be tempered by mercy. A prison
sentence that was just when imposed could—because of changed circumstances—become
cruel as well as senseless if not altered. The US criminal justice system, even though it
prizes the consistency and finality of sentences, makes room for judges to take a second
look to assess the ongoing justice of a sentence.
Prisoners cannot seek a sentence reduction for extraordinary and compelling
circumstances directly from the courts. By law, only the Federal Bureau of Prisons (BOP,
the Bureau) has the authority to file a motion with a court that requests judicial
consideration of early release. Although we do not know how many prisoners have asked
the BOP to make motions on their behalf—because the BOP does not keep such records—
we do know the BOP rarely does so. The federal prison system houses over 218,000
prisoners, yet in 2011, the BOP filed only 30 motions for early release, and between January
1 and November 15, 2012, it filed 37. Since 1992, the annual average number of prisoners
who received compassionate release has been less than two dozen. Compassionate
release is conspicuous for its absence.
The paucity of BOP motions for sentence reduction for extraordinary and compelling
reasons is not happenstance. The BOP insists that it has essentially unbounded discretion
with regard to compassionate release, and it has chosen to exercise that discretion to
reject compassionate release in all but a few cases.

THE ANSWER IS NO

2

On the one hand, the BOP has sharply limited the grounds for compassionate release,
refusing to seek a sentence reduction except when the prisoner is expected to die within a
year or is profoundly and irremediably incapacitated. It has not utilized the broader range
of medical and non-medical circumstances that the Sentencing Commission has described
as warranting consideration for compassionate release.
On the other hand, the BOP has arrogated to itself discretion to decide whether a prisoner
should receive a sentence reduction, even if the prisoner meets its stringent medical
criteria. In doing so, the Bureau has usurped the role of the courts. Indeed, it is fair to say
the jailers are acting as judges. Congress intended the sentencing judge, not the BOP, to
determine whether a prisoner should receive a sentence reduction. The BOP would
exercise a limited administrative function, screening prisoner requests for compassionate
release to ascertain whether their circumstances might fall within those intended by the
statute and later described by the Sentencing Commission. In such cases, it was intended
that the BOP should make a motion for sentence reduction to the court. Congress
instructed the court considering the motion to give due consideration to the nature of the
crime, the likelihood of re-offending, the purposes of punishment, and other relevant
factors in making its decision.
But in practice, when reviewing prisoner requests for compassionate release, the BOP
makes decisions based on the very factors that Congress directed the courts to consider.
For example, the BOP determines whether an otherwise deserving prisoner might re-offend,
how a victim or the community might react to early release, and whether the prisoner has
been punished enough. BOP officials often conclude a dying prisoner should not be
permitted to spend his final months with his family because he is still physically capable
of committing a crime if released, however unlikely the prospect that he would do so.
Compassionate release might not be so scarce if the courts were able to review BOP
decisions declining to seek early release. But the Department of Justice (DOJ, the
Department) has successfully persuaded most courts that they lack the authority to review
the BOP’s refusal to bring a motion for sentence reduction, however arbitrary or unfair that
decision may be.
When Congress placed compassionate release decisions in the hands of the courts, it
honored the basic human rights and due process requirement that criminal justice
3

NOVEMBER 2012

decisions on the initial and ongoing deprivation of liberty should be made by independent
and impartial entities. The BOP cannot accurately be described as either. It is a component
of the DOJ, directed and supervised by the deputy attorney general. In recent years, the
Department has taken policy positions averse to any but the most restrictive interpretation
of compassionate release, favoring finality of sentences over sentence reductions for
extraordinary and compelling reasons. Even at the level of individual cases, the DOJ
exercises influence: when considering inmate requests, the BOP consults the prosecutor—
and in some cases the deputy attorney general—before making a final decision.
The BOP’s compassionate release process also suffers from lack of basic procedures to
ensure fair and reasoned decision-making. For example, there is no hearing in which the
prisoner or his counsel—if he has one—can present his case for compassionate release,
rebut arguments against it, or correct any factual mistakes BOP officials may have made.
The BOP does not tell the prisoner what information or concerns it has relied on from DOJ
officials or other stakeholders, which denies the prisoner a meaningful opportunity to
respond to negative assessments or challenge newly raised arguments. While the prisoner
can administratively appeal a warden’s denial, wardens almost never relent. Subsequent
appeals up the chain to the Bureau headquarters (referred to as the BOP Central Office) are
also doomed; in 2011, for example, the BOP Central Office did not grant any administrative
appeals in compassionate release cases.
The DOJ has recently acknowledged that the ever-expanding federal prison population and
the budget of almost $6.2 billion that BOP uses to keep federal prisoners locked up are
unsustainable. According to the Department’s inspector general, the growing and aging
federal prison population consumes an ever-larger portion of the Department’s budget,
contributes to overcrowding that jeopardizes the safety of federal prisons and well-being
of prisoners, and may force budget cuts to other DOJ components.4 One of the most readily
available, feasible, and sensible steps the BOP can make to reduce federal prison
expenditures would be to ensure that compassionate release functions as Congress
intended.

4 “Top Management and Performance Challenges in the Department of Justice – 2012,” Memorandum from Michael E.

Horowitz, Inspector General, DOJ, to the Attorney General and the Deputy Attorney General, DOJ, November 7, 2012,
www.justice.gov/oig/challenges/2012.htm (accessed November 19, 2012). The memorandum also notes that the BOP
portion of the DOJ budget exceeds 25 percent.

THE ANSWER IS NO

4

Increasing the number of dying or debilitated prisoners who are granted compassionate
release would not markedly reduce the total federal prison population, but would free the
BOP from the unnecessary security costs of confining prisoners who pose scant risk of
harm to anyone and from their medical costs. The per capita cost of caring for a prisoner in
one of the BOP’s medical centers was $40,760 in FY 2010, compared to an overall per
capita cost of $25,627.5 Releasing prisoners who are not suffering from grave medical
conditions but who face other compelling circumstances—such as those whose children
are destined for the foster care system or who are desperately needed at home to care for
dying family members—would advance other important societal goals, such as
preservation of the family.
Compassionate release also deeply implicates fundamental human rights principles. We
recognize that there are members of the public—and public officials as well—who cannot
accept the idea of early release for persons who have been convicted of felonies,
especially those who have harmed victims and their families. But a criminal justice system
that respects human rights does not only ensure accountability for those who commit
crimes. It also ensures that sanctions are proportionate to the crime and further the goals
of punishment. A prison sentence that constituted a just and proportionate punishment at
the time it was imposed may become disproportionately severe in light of changed
circumstances, such as grave illness. Keeping a prisoner behind bars when it no longer
meaningfully serves any legitimate purpose cannot be squared with human dignity and
may be cruel as well as senseless.
Many states have laws permitting early release or parole for medical or other reasons,
establishing various procedures and criteria for eligibility. There has been little research on
the experience in the different states, although the available information suggests that the
laws are greatly underutilized. The experience of the BOP is important because it is the
largest prison system in the country. Also, we suspect the Bureau’s resistance to forwarding
cases to the courts reflects concerns—such as sufficiency of punishment and likelihood of
re-offending—that state decision-makers share as well. We hope that our in-depth analysis
of the BOP’s policies and practices will prompt similar inquiries into similar state programs.

5 US Bureau of Prisons, “Federal Prison System Per Capita Costs, FY 2010” January 12, 2011,

http://www.bop.gov/foia/fy10_per_capita_costs.pdf (accessed November 1, 2012).

5

NOVEMBER 2012

Gene Brown
Dr. Gene Brown (pseudonym), age 63, a physician and medical researcher,
was sentenced in 2010 to five years and three months in prison for mail and
wire fraud connected to a fraudulent investment scheme.6 His scheduled
release date is in November 2013. He is terminally ill, with prostate cancer that
has metastasized into his bones. According to Brown, he is in constant pain,
suffers from a variety of other medical conditions, sleeps the greater part of
each day, and spends most of his waking hours in medical care.
Brown has sought compassionate release. On August 17, 2011, a request
submitted by his doctor on his behalf was denied. While recognizing that his
prognosis was poor because of the metastasized cancer, the staff committee
set up by the warden to review compassionate release requests (the Reduction
in Sentence Committee) recommended that his request be denied because of
the “severity of your crime [and] the possibility of your ability to reoffend,” and
the warden concurred.7 The memorandum from the warden to Brown detailed
the devastating impact his scheme had on the people he defrauded. It noted,
for example, that one victim was unable to get a critical stem cell transplant
surgery for her husband because of the $175,000 she had given to Brown to
invest, none of which she recovered. But the memorandum offers no
discussion of whether or why Brown might be likely to re-offend. It only
suggests re-offending would be possible, presumably because, in the
committee’s judgment, Brown has sufficient physical and mental capacity to
commit another crime should he so choose. When Human Rights Watch asked
Brown if he filed an appeal to the denial of his request, he said he did not
know that appeals were possible.
On November 8, 2011, the oncologists at his prison recommended Brown be
reconsidered for sentence reduction. Four months later, on March 15, 2012,

6Human Rights Watch interview with Gene Brown (pseudonym), Federal Medical Center, Butner, North Carolina (FMC Butner),
July 30, 2012. Information on Brown’s case was also obtained from BOP documents that he provided Human Rights Watch
(on file at Human Rights Watch).
7 Memorandum from Sara M. Revell, Complex Warden, FMC Butner, Re: Reduction in Sentence, August 23, 2011 (on file at
Human Rights Watch).

THE ANSWER IS NO

6

Brown asked for an update on the possible reconsideration. The staff response
stated,
“We are aware that your prognosis is poor and you are
progressively getting worse. Although the [oncology staff]
supports a reconsideration of a [Reduction in Sentence], it is
from a medical standpoint only. Please be advised that your
denial of a [Reduction in Sentence] was based on your crime
and your ability to re-offend. Therefore, the factors which
prevented you from receiving a favorable response the first
time still remains [sic].”8

Throughout our report, we present the stories of individual prisoners, most of whom were
denied compassionate release by the Bureau of Prisons. These stories are of prisoners
who, in our opinion, have the requisite “extraordinary and compelling” reasons to seek
compassionate release as described by the United States Sentencing Commission. We do
not know, of course, whether the courts would have granted early release to any of these
prisoners, but we believe the BOP should have forwarded their cases on to the courts so
that judges could have made that decision.

8 Response to Inmate Request to Staff, from Judy B. Pyant, BOP social worker and chair of the Reduction in Sentence
Committee, March 21, 2012 (on file at Human Rights Watch).

7

NOVEMBER 2012

Recommendations
Compassionate release has not been a high priority for the Bureau of Prisons. Senior BOP
officials have failed to pay appropriate attention to how wardens define and exercise their
discretion in some instances, and in others, have nurtured a culture of “no” that influences
how wardens respond to prisoner requests. Oversight by the Department of Justice has
compounded the problem. Ranging from benign neglect to active resistance to program
reform, DOJ oversight has muted the promise of compassion envisioned by Congress.
There are some promising signs of change. The BOP has created an internal working group
to look at its compassionate release program and the Office of the Inspector General of the
DOJ is conducting an audit of how the Bureau implements its compassionate release
authority. The new director of the BOP, Charles Samuels, has told us of his interest in
reforming the program. We are encouraged to learn that under his leadership, more people
are receiving compassionate release.
To further significant reform, we offer the following recommendations to the BOP, the DOJ,
and Congress. These recommendations are designed to ensure that all worthy
compassionate release requests receive judicial review, to remove the unnecessary and
inappropriate roadblocks the BOP has instituted to compassionate release, and to stop
the “jailer” from usurping the role of the judge in deciding who should receive a sentence
reduction.

To the Bureau of Prisons
The Bureau of Prisons must reform its process for responding to prisoner requests for
sentence reduction consideration to ensure it exercises its responsibilities consistent with
federal law and the principle of separation of powers. The BOP should ensure that it
responds quickly, fairly, and compassionately to the needs of prisoners in extraordinary
and compelling circumstances.
The BOP to date has believed that it has to “recommend” prisoners for compassionate
release when it makes a motion to the courts. It has been unwilling to do so unless, in its
judgment, the prisoner presents extraordinary and compelling circumstances and the BOP

THE ANSWER IS NO

8

believes early release would not compromise public safety or other criminal justice
considerations. But that is not what Congress intended it to do.
We urge the BOP to re-conceptualize its view of compassionate release motions. They
should be a vehicle for presenting to the court prisoner requests whose grounds the BOP
has verified as indeed extraordinary and compelling. That is, after establishing the validity
of the grounds for a prisoner’s request—for example, that the prisoner has a terminal
illness—the BOP would send the case to the court with a motion seeking the court’s review.
Specifically, the BOP should:
I.

Immediately issue a memorandum to executive staff, to be memorialized as soon as
possible in an official program statement and, to the extent necessary, in new
regulations, that provides that:
•

The BOP will treat as extraordinary and compelling the reasons described in the
USSC section 1B1.13 application notes. Where they exist, the BOP will not base a
refusal to make a motion for sentence reduction or to request federal prosecutors
to make it based on its views about public safety, sufficiency of punishment,
community concerns, or other factors relevant to sentence reduction that have
been statutorily assigned to the courts by 18 U.S.C. section 3582(c)(1)(A)(i). If
deemed necessary, the government’s attorney may present objections to a
sentence reduction on these or other grounds to the sentencing judge;

•

Medical staff, social workers, and case managers working for the BOP will take
affirmative steps to raise the option of seeking compassionate release to the
attention of all prisoners they believe may have extraordinary and compelling
reasons for early release;

•

Denials of prisoner requests for consideration of sentence reduction by
wardens, regional directors, or BOP Central Office staff should be written with
specificity and should accurately state the grounds for denial and how different
factors were weighed;

•

All requests for compassionate release should be processed as quickly as
possible. Warden decisions should be made within 15 working days of the
request from the prisoner or someone on the prisoner’s behalf, and a final
decision by the BOP director should be made no later than 20 working days
after a positive recommendation by the warden; and
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NOVEMBER 2012

•

In the case of appeals of denials of compassionate release, the prisoner will be
deemed to have exhausted his administrative remedies 30 working days after
the warden’s denial or the date of a final decision by the BOP Central Office,
whichever is sooner.

II.

Direct facilities to ensure that prisoner handbooks inform prisoners of the availability
of compassionate release, provide a non-exhaustive list of examples of the medical
and non-medical circumstances that might constitute extraordinary and compelling
circumstances, and advise prisoners on how to initiate requests for consideration for
compassionate release. The BOP should also ensure the handbooks clearly explain
how to administratively appeal a denial.

III.

Provide trained staff to assist prisoners who are illiterate or too ill or infirm to seek
compassionate release or to appeal adverse decisions on their own. This assistance
should include help with fashioning appropriate release plans.

IV.

In the event that the US Probation Office has not finalized or approved release plans,
but there are extraordinary and compelling reasons for the prisoner’s sentence
reduction, the BOP should proceed with a motion to the court, recognizing that the
court may not order the release of a prisoner until the release plan has been finalized.

V.

Establish a process to gather and annually publish statistics sufficient to ensure
transparency with regard to how the BOP handles compassionate release. The
statistics should include annual data regarding:
•

The number of requests for compassionate release that are made to wardens,
as well as the number considered by more senior BOP staff;

•

The category of the “extraordinary and compelling” reasons alleged by
prisoners to support their requests for early release (such as terminal illness or
family circumstances);

•

The grounds for grants and denials by wardens and Central Office staff;

•

The number of motions for compassionate release made to sentencing courts;

•

The number of prisoners released pursuant to 18 U.S.C. section 3582(c)(1)(A)(i);
and

•

The number of administrative appeals of compassionate release requests
originally denied by a warden, and the number of those appeals that are
granted or denied by the different administrative offices that receive the appeal.

THE ANSWER IS NO

10

To the Department of Justice
The Department of Justice should support congressional initiatives to legislate the
recommendations noted below.
In addition, the DOJ should immediately:
I.

Work with the BOP to draft new compassionate release regulations that:
•

Establish criteria for motions for sentence reduction consistent with the
guidance of the USSC;

•

Limit BOP compassionate release discretion to determining whether the
circumstances consistent with that guidance exist; and

•

Affirm that the BOP is not to deny a request for a motion for sentence reduction
on public safety or other criteria that Congress has assigned to the courts for
consideration.

II. Establish as formal DOJ policy that, until such time as Congress has enacted the
legislation recommended below, no DOJ official may object to bringing compassionate
release motions on grounds of public safety, sufficiency of punishment, or other
considerations that belong within the courts’ purview.

To Congress
While the Bureau of Prisons can and should change its practices immediately, we also urge
Congress to enact legislation to ensure judges can order the early release of prisoners for
extraordinary and compelling reasons.
Specifically, Congress should:
I.

Enact legislation that explicitly grants prisoners the right to seek compassionate
release from the court after exhausting their administrative remedies. This will
enable courts to have final say over whether a sentence reduction is warranted, while
providing courts with a developed record and the BOP with an incentive to state on
the record its detailed reasons for denial.

II.

Enact legislation that requires the BOP to publish annual statistics regarding
requests for compassionate release. The statistics should address, specifically, the

11

NOVEMBER 2012

number of requests made and their basis, as well as their disposition by different
levels of the BOP and in the courts. They should also include data on the resolutions
of administrative appeals of warden and regional director denials of prisoner
requests. The data should be sufficient in quantity and specificity to ensure
transparency and to enable the public and Congress to understand how
compassionate release functions in practice.
III.

Amend 18 U.S.C. section 3582(c)(1)(A)(i) to clarify that:
•

The BOP is required to make motions to the sentencing courts for a reduction in
sentence in all cases that fall within the United States Sentencing Commission
Guideline section 1B1.13; and

•

While Congress has directed the sentencing courts to consider certain public
safety or criminal justice grounds in assessing motions for compassionate
release, the BOP is not authorized to assess those grounds and may not rely
upon them as a basis for refusing to make a compassionate release motion.

THE ANSWER IS NO

12

Victoria Blain
In late 2007, Victoria Blain (pseudonym) moved with her husband Jack and their
two young children Tina (22 months) and Peter (6 months) to a small Arizona
town.9 In 2008, she was arrested and sent back to Alabama to face old drug
charges. Blain readily admitted her role in a drug-related conspiracy and agreed
to assist authorities. She was permitted to return to her home in Arizona to await
sentencing and then permitted to self-surrender two months after she was
sentenced. Because of her cooperation with the authorities, instead of receiving
a 120-month sentence, she received a reduced sentence of 75 months.
Jack Blain took on the job of single parenthood after his wife reported to the
federal prison camp near Phoenix, and for two years, with transportation help
from the church community which they had joined, Victoria Blain saw her
children on a weekly basis.
After serving a quarter of her sentence, she learned in January 2011 that Jack
Blain had been diagnosed with an inoperable form of pancreatic cancer, and
she requested compassionate release. The warden denied both her request
and her subsequent administrative appeal “based on the totality of
circumstances involved in this matter, including your current offense….”10 The
Regional Office concurred. “While [your husband’s] prognosis is unfortunate,
we do not find extraordinary or compelling reasons to support a reduction in
your sentence.”11 Blain appealed to the BOP Central Office, pointing out that
her children would be left without a family member to care for them—a
circumstance the Sentencing Commission had contemplated as possible
grounds for compassionate release—and asserting that she posed no danger
to the community, as evidenced by the fact that the judge had allowed her to
remain in her home after arrest, conviction, and sentencing.
Jack Blain, who had struggled to care for their children while falling deeper into

9 This account was drawn from memorialized conversations with Blain’s pastor, correspondence from him and Blain, and

BOP and court documents on file at Families Against Mandatory Minimums.

10 Memorandum from D. Smith, Warden, to Victoria Blain (pseudonym), March 3, 2011

11 Memorandum from Robert E. McFadden, Regional Director, Bureau of Prisons, May 5, 2011.

13

NOVEMBER 2012

pain and disability, died on August 12, 2011, with no response from the Central
Office of the BOP. The church hastily arranged a temporary home for the children
with a family and redoubled their efforts to secure Victoria Blain’s release.
The BOP eventually responded to her appeal with a request for information
about the circumstances that led to the loss of her parental rights to her first
child years earlier, when she was 18. Blain recounted a harrowing story of
physical and psychological abuse at the hands of the child’s father, who
stalked her and terrorized her family after Child Protective Services (CPS)
denied him access to his son. She lost custody of and parental rights over her
son when, driven by fear, she eventually allowed his father to have contact
with him without CPS’s knowledge.
In the same letter explaining how she lost custody of her eldest child, Blain
begged the BOP to allow her to parent the two young children, now housed
with strangers who had begun to isolate them from her and from the church
community that had worked so hard to help the family. Several weeks later,
she reiterated her concerns about the guardian’s increasing isolation of the
children from her and the church community.
On March 1, eight months after the death of Blain’s husband and six months
since she had heard anything from the BOP about her request, she was asked
again to explain why she lost her parental rights to her first child, and she did
so. Finally on April 3, 2012, the Central Office denied Blain’s request, citing the
fact that her children were “doing well” and noting that she had accomplished
a great deal while incarcerated, attending college, parenting, and drug abuse
classes. The denial stated, however, that “Ms. [Blain] engaged in her criminal
behavior while her children were very young. Ms. [Blain’s] parental rights were
terminated for a son born during a previous relationship. Review of Ms.
[Blain’s] past history raises concern as to whether she will be able to sustain
the stresses of sole parenting and employment while remaining crime-free.”12

12 Memorandum from Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of Prisons, to D. Smith, Warden,
April 3, 2012.

THE ANSWER IS NO

14

Methodology
This report is based on over five dozen in-person and telephone interviews with current
and former Bureau of Prison officials, federal prisoners, family members, lawyers,
advocates, and former Department of Justice officials, as well as extensive email and
written correspondence with an additional two dozen prisoners. We also reviewed official
BOP documents pertaining to the efforts of dozens of individual prisoners to receive
compassionate release. In addition, much of the information and perspective reflected in
this report comes from the many years Families Against Mandatory Minimums has spent
working to secure reform of the Bureau of Prison’s compassionate release practices.
The report contains specific data the Bureau of Prisons provided in response to our
questions about its compassionate release program. In addition, the Bureau
permitted Jamie Fellner to visit the Federal Medical Facility at Butner, North Carolina to
interview prisoners there, as well as the warden and other BOP staff at the facility. The
report also includes the results of our research into the legislative history of the statutory
provision authorizing sentence reduction for extraordinary and compelling reasons.

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NOVEMBER 2012

I. Background
In 1984, Congress passed the Sentencing Reform Act (SRA), a major overhaul of federal
sentencing. It abolished parole for prisoners who committed their offenses after
enactment of the SRA, established limited good time credits,13 eliminated parole,
instituted determinate sentencing, and authorized the creation of the United States
Sentencing Commission (USSC) to establish sentencing guidelines.14

Compassionate Release
Although Congress furthered the goal of finality in sentencing by eliminating parole and
limiting the court’s jurisdiction over a case once a conviction has become final, lawmakers
recognized that circumstances could arise that would render a final sentence unjust or
unfair. They included “safety valves” in the SRA, authorizing federal courts to revisit
sentences in a few specific situations and to reduce them if appropriate.
One of those safety valves, colloquially referred to as “compassionate release,” enables
the courts to reduce sentences for “extraordinary and compelling” reasons.15 Codified at 18
U.S.C. section 3582 (c)(1)(A)(i), it provides,
(c) Modification of an Imposed Term of Imprisonment.— The court may not
modify a term of imprisonment once it has been imposed except that—
(1) in any case—

13

Federal prisoners who maintain good behavior while imprisoned are eligible for a reduction in the amount of time that

must be served, of up to 54 days a year for every year served. 18 U.S.C. section 3624.
14 Title II of the Comprehensive Crime Control Act of 1984, P.L. No. 98-473, 98 Stat. 1987, 1987-88 (codified as amended
throughout Titles 18 and 28 of the U.S. Code).
15

Prior to the SRA, the Parole Commission had the authority to grant or deny parole based on changed circumstances, but a

prisoner was required to serve a minimum amount of her sentence before being eligible for parole. 18 U.S.C. section 4205
(1980). Under section 4205(g), the court, upon motion of the BOP, could reduce a prisoner’s minimum sentence, making the
prisoner eligible for consideration by the Parole Board earlier than she otherwise would have been. BOP regulations
authorized the agency to make motions for sentence reduction to secure early parole in “particularly meritorious or unusual
circumstances which could not reasonably have been foreseen by the court at the time of sentencing ... for example, if there
is an extraordinary change in an inmate’s personal or family situation or if an inmate becomes severely ill.” 28 C.F.R. section
572.40(a).

THE ANSWER IS NO

16

(A) the court, upon motion of the Director of the Bureau of Prisons,
may reduce the term of imprisonment (and may impose a term of
probation or supervised release with or without conditions that
does not exceed the unserved portion of the original term of
imprisonment), after considering the factors set forth in section
3553 (a) to the extent that they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a
reduction;… and that such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.
The Senate Judiciary Committee’s Report on the Sentencing Reform Act explained the need
for this provision as follows:
The first “safety valve” applies, regardless of the length of sentence, to the
unusual case in which the defendant’s circumstances are so changed, such
as by terminal illness, that it would be inequitable to continue the
confinement of the prisoner. In such a case, under Subsection (c)(1)(A), the
director of the Bureau of Prisons could petition the court for a reduction in
the sentence, and the court could grant a reduction if it found that the
reduction was justified by “extraordinary and compelling reasons” and was
consistent with applicable policy statements issued by the Sentencing
Commission.16
Congress recognized that many circumstances might arise that could warrant sentence
reduction. Instead of elaborating in the statute the possible circumstances, Congress
assigned that task to the USSC.17 The only limitation placed on the Sentencing Commission
was a caution that “rehabilitation alone shall not be considered an extraordinary and
compelling reason.”18

16 US Senate Committee on the Judiciary, “Report on the Comprehensive Crime Control Act of 1983,” 98th Cong., 1st Sess.,

1984, S. Rep. No. 225, p. 121.

17 See Duties of the Commission, 28 U.S.C. section 994(t).
18 Ibid.

17

NOVEMBER 2012

The Senate Report noted, “The Committee believes that there may be unusual cases in
which an eventual reduction in the length of a term of imprisonment is justified by
changed circumstances. These would include cases of severe illness, [or] cases in which
other extraordinary and compelling circumstances justify a reduction of an unusually long
sentence.”19
The SRA gave federal judges the central decision-making role in compassionate release.
First, courts have the authority to decide whether to grant a sentence reduction, even
though the exercise of that authority is triggered by a BOP motion. Second, the statute
requires the court to consider the factors enumerated in 18 U.S.C. section 3553(a) when
making its decision. Section 3553(a), in turn, enunciates factors the courts are to consider
at sentencing, including the severity of the crime, criminal history, and the purposes of
punishment.20
19 US Senate Committee on the Judiciary, “Report on the Comprehensive Crime Control Act of 1983,” S. Rep. No. 225, p. 55.
20 18 U.S.C. section 3553(a) reads in pertinent part:

Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular
sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the
guidelines—
(i)

issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code,
subject to any amendments made to such guidelines by act of Congress (regardless of whether such
amendments have yet to be incorporated by the Sentencing Commission into amendments issued
under section 994 (p) of title 28);

(ii)

that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced;

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements
issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into
account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether
such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under
section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to
any amendments made in such policy statements by act of Congress (regardless of whether such amendments

THE ANSWER IS NO

18

The legislative history underscores the paramount role of the court in compassionate
release decisions. “The [SRA] … provides … for court determination, subject to
consideration of Sentencing Commission standards, of the question whether there is
justification for reducing a term of imprisonment in situations such as those described.”21
The Senate Judiciary Committee signaled its views of the court’s role even more directly in
a later section of its report:
The value of the forms of “safety valves” contained in this section lies in
the fact that they assure the availability of specific review and reduction of
a term of imprisonment for “extraordinary and compelling reasons”…. The
approach taken keeps the sentencing power in the judiciary where it
belongs, yet permits later review of sentences in particularly compelling
situations.22

A Narrow Interpretation of Compassionate Release
In 1994, the BOP published new regulations for the use of its compassionate release
authority.23 The regulations acknowledge that compassionate release could be based on
medical and non-medical circumstances. But in practice, and in internal guidance to staff,
the BOP sharply limited the grounds for compassionate release to certain dire medical
situations.

have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title
28); and
(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty
of similar conduct; and
(7) the need to provide restitution to any victims of the offense.

21 US Senate Committee on the Judiciary, “Report on the Comprehensive Crime Control Act of 1983,” S. Rep. No. 225, p. 55

(emphasis added).
22

Ibid., p. 121 (emphasis added).

23 28 C.F.R. 571 (1994), Subpart G – Compassionate Release (Procedures for the Implementation of 18 U.S.C. 3582(c)(1)(A)

and 4205(g)),
http://www.gpo.gov/fdsys/search/pagedetails.action;jsessionid=n18JQStpLNjXJSXNP1L94NnmXk42zRvG3m7mVc5PyBChwG
pC1WrJ!-874026954!1164957459?collectionCode=CFR&searchPath=Title+28%2FChapter+V%2FSubchapter+D%2FPart+571%2FSubpart+G&granul
eId=CFR-2010-title28-vol2-part571-subpartG&packageId=CFR-2010-title28vol2&oldPath=Title+28%2FChapter+V%2FSubchapter+D%2FPart+571%2FSubpart+G&fromPageDetails=true&collapse=false
&ycord=831 (accessed November 1, 2012).

19

NOVEMBER 2012

The 1994 regulations provide that the BOP may bring a motion to reduce the term of
imprisonment under 18 U.S.C. section 3582(c)(1)(a) “in particularly extraordinary or
compelling circumstances which could not reasonably have been foreseen by the court at
the time of sentencing.” They also delineate the procedures to be followed by the Bureau
in responding to prisoner requests for compassionate release. The specified procedures
differ according to whether the prisoner presents medical or non-medical grounds for
compassionate release.24
A July 1994 memorandum from then-BOP Director Kathleen M. Hawk to wardens (Hawk
Memo) indicates that in practice, the BOP would not accept non-medical grounds for
compassionate release. Instead, it would only seek sentence reductions in end-of-life and
certain other grave medical situations:
The Bureau of Prisons has historically taken a conservative approach to
filing a motion with the courts for the compassionate release of an
inmate.… Until recently, our general guideline was to recommend release of
an inmate only in cases of terminal illness when life expectancy was six
months or less. Not many months ago, we extended the time limit to a one
year life expectancy.… As we have further reviewed this issue, it has come
to our attention that there may be other cases that merit consideration for
release. These cases still fall within the medical arena, but may not be
terminal or lend themselves to a precise prediction of life expectancy.
Nevertheless, such cases may be extremely serious and debilitating.25

24 28

C.F.R. 571.60 (1994), Subpart G – Compassionate Release (Procedures for the Implementation of 18 U.S.C. 3582(c)(1)(A)
and 4205(g)), Section 571.60 – Purpose and Scope. The Bureau did not publish the new regulations in the Federal Register
for what is known as public “notice and comment,” explaining that there was no need to do so “because the revised rule
imposes no additional burdens or restrictions on prisoners.” 59 Fed. Reg. 1238 (January 7, 1994).

25

Memorandum from Kathleen M. Hawk, former director, Bureau of Prisons, to executive staff (Hawk Memo), July 22, 1994

(included in appendix). The BOP provided this memorandum to us in response to a request for all documents delineating
BOP compassionate release policies, but it is not clear whether current wardens have seen it. At least one warden we
interviewed told us she had never seen it. Human Rights Watch interview with Sara Revell, Complex Warden, FMC Butner,
North Carolina, July 30, 2012. It was not until 1998 that the BOP actually made motions for sentence reduction for prisoners
who were not terminally ill but who had extremely serious medical conditions which resulted in markedly diminished public
safety risk and quality of life. “Bureau of Prisons Compassionate Releases 1990-2000,” reproduced in Mary Price, “The Other
Safety Valve: Sentence Reduction Motions Under 18 U.S.C. section 3582(c)(1)(A)” (“Other Safety Valve”), 13 Fed. Sent’g Rep.
3-4, 188-191 (2001). Data provided by BOP and on file at Human Rights Watch and Families Against Mandatory Minimums.

THE ANSWER IS NO

20

The 1994 regulations do not specify the factors the BOP should take into account in
reviewing a prisoner’s request to be considered for compassionate release. The Hawk
Memo not only limited compassionate release to medical cases, but it also directed
wardens to “consider and balance” in each case a list of factors extraneous to a prisoner’s
medical condition, including the nature and circumstances of the offense; criminal and
personal history and characteristics of the prisoner; the danger, if any, the prisoner poses
to the public if released; and the length of the prisoner’s sentence and the amount of time
left to serve.26 The Hawk Memo made a point of saying these factors were not “criteria” but
rather “guidelines,” and even a prisoner who “met a majority of the … factors” might not
be appropriate for release. Rather, “staff should rely on their correctional judgment,”
documents, and verified information in deciding whether to recommend early release.”27 It
is clear from the Hawk Memo that the BOP considered its job to entail determining
whether a prisoner should be given early release—in essence, whether it would
recommend that the court order a sentence reduction.
Several of the factors the Hawk Memo assigned for warden consideration mirrored those
that Congress had committed to the courts considering a motion from the BOP for
compassionate release.28 For example, courts, consulting 18 U.S.C. section 3553(a), are
directed to consider “the nature and circumstances of the offense and the history and
characteristics of the defendant.”29 Courts must also review the “seriousness of the
offense” and ensure that the decision provides “just punishment” and “protect[s] the
public from further crimes of the defendant.”30 Congress gave no signal to the BOP that it
should use those factors in determining which cases it would present to the courts.
In 1998, the Bureau adopted a compassionate release “Program Statement,” an internal
version of the 1994 federal regulations. Like the regulations, the Program Statement
focused primarily on the procedures the BOP is to follow, and it establishes different
procedures for medical and non-medical cases. The Program Statement also includes a
section not included in the 1994 regulations that describes the “program objectives” and
26 Hawk Memo, pp. 1-2.
27 Hawk Memo, p. 2.

28 In 18 U.S.C. 3582 (c)(1)(A), Congress authorized courts to modify sentences it if finds that extraordinary and compelling

circumstances warrant such a reduction “after considering the factors set forth in section 3553 (a) to the extent that they are
applicable…” (emphasis added).
29 18 U.S.C. section 3553(a)(1).
30

18 U.S.C. section 3553(a)(2)(A),(C).

21

NOVEMBER 2012

“expected results” of compassionate release, including that “[t]he public will be protected
from undue risk by careful review of each compassionate release request.”31 These
“objectives” and “results” statements, like the list of factors to consider in the Hawk
Memo, reflect the Bureau’s view that it could and should incorporate public safety into its
compassionate release decision-making process, even though neither Congress nor the
1994 regulations expressly authorized it to do so.
In 2006, the BOP published for public comment in the Federal Register proposed rules
regarding compassionate release, stating that the proposed rules reflected its “current
policy.”32 The proposed rules said that a prisoner could be considered for a reduction in
sentence motion only if the prisoner “suffers from a terminal illness with a life expectancy
of one year or less, or a profoundly debilitating medical condition that may be physical or
cognitive in nature, is irreversible and cannot be remedied through medication or other
measures, and has eliminated or severely limited the inmate’s ability to attend to
fundamental bodily functions and personal care needs without substantial assistance
from others (including personal hygiene and toilet functions, basic nutrition, medical care,
and physical safety).”33
The BOP explained that new rules were needed because it “has received letters and
Administrative Remedy appeals from inmates who mistakenly believe that we will consider
circumstances other than the inmate’s medical condition for reducing a sentence. Such is
not the Bureau’s practice.”34 The BOP considered the proposed rules a “clarification that
we will only consider inmates with extraordinary and compelling medical conditions for
[reduction in sentence] and not inmates in other, non-medical situations which may be
characterized as ‘hardships,’ such as a family member’s medical problems, economic
difficulties, or the inmate’s claim of an unjust sentence.”35 The Bureau proposed that the
title of the rules be changed from “Compassionate Release” to “Reduction in Sentence for
Medical Reasons.”36
31 Bureau of Prisons, Program Statement 5050.46, “Compassionate Release; Procedures for Implementation of 18 U.S.C 3582
(c)(1)(A) & 4205(g),” Change Notice at 2, May 19, 1998, http://www.bop.gov/policy/progstat/5050_046.pdf (accessed
November 1, 2012).
32
33
34
35
36

“Reduction in Sentence for Medical Reasons,” 71 Fed. Reg. No. 245 at 76619 (December 21, 2006).
Ibid., at 76619-76620.
Ibid., at 76619.
Ibid.
Ibid.

THE ANSWER IS NO

22

The BOP received strongly critical comments on the proposed regulations from the
National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums
(FAMM), the American Bar Association (ABA), and the Federal Public and Community
Defenders, among others. The Bureau then attempted to draft less-restrictive regulations,
embracing non-medical criteria—such as that outlined in the Sentencing Commission
guideline adopted in 2007—that would reflect the comments it had received. By 2008, it
had become apparent to the BOP that they were not going to reach a consensus with DOJ
on a revised regulation. New regulations have never been adopted because the DOJ has
been unwilling to agree to broader rules than those proposed in 2006.37

The United States Sentencing Commission Guidelines
Congress assigned to the USSC the responsibility for fleshing out what would be
considered “extraordinary and compelling” reasons for a sentence reduction, but the years
passed with no action by the Sentencing Commission.38 Dismayed at the paucity of
motions from the BOP,39 in 2001 criminal justice advocates like FAMM and the ABA began
urging the US Sentencing Commission to issue guidelines that would authorize a broad
range of medical and non-medical bases for sentence reduction.40
In 2006, the USSC called for public comment on a draft guideline and in 2007 it held
hearings. Most of the organizations that provided public comment or testified before the
37

Human Rights Watch and Families Against Mandatory Minimums interview with Kathleen M. Kenney, Assistant Director

and General Counsel, Bureau of Prisons, Washington, DC, November 13, 2012. The BOP does not have independent rulemaking authority; the Department of Justice must approve its regulations.
38

Duties of the Commission, 28 U.S.C. section 994(t).

40 Between 1990 and 2000, for example, the BOP filed only 226 motions for sentence reduction for extraordinary and

compelling reasons. See Figure 1, in Section II below. At least some USSC members believed the absence of guidelines
contributed to the paucity of motions for sentence reduction: “Without the benefit of any codified standards, the Bureau [of
Prisons], as turnkey, has understandably chosen to file very few motions under this section.” John Steer and Paula Biderman,
“Impact of the Federal Sentencing Guidelines on the President’s Power to Commute Sentences,” 13 Fed. Sent’g Rep. 154-158,
155 (2001).
40 See, for example, “Other Safety Valve,” p. 190 (proposing compassionate release policy statement language to Sentencing
Guidelines); Letter from Julie Stewart and Mary Price, on behalf of FAMM, to Diana Murphy, then chair, US Sentencing
Commission, August 1, 2003 (urging the Sentencing Commission to adopt the compassionate release policy statement);
Letter from James Felman and Barry Boss, on behalf of the Practitioners’ Advisory Group, to Diana Murphy, then chair, US
Sentencing Commission, July 31, 2003, http://www.src-project.org/wp-content/pdfs/publiccomment/ussc_publiccomment_20030801/0004047.pdf (accessed November 1, 2012); Letter from Margaret C. Love, on
behalf of the American Bar Association, to Diana Murphy, then chair, US Sentencing Commission, August 1, 2003,
http://www.src-project.org/wp-content/pdfs/public-comment/ussc_publiccomment_20030801/0004057.pdf (accessed
November 1, 2012) (collecting earlier letters from the ABA and the ABA Report to the ABA House of Delegates).

23

NOVEMBER 2012

Sentencing Commission supported enabling the courts to make mid-course corrections in
sentences for a variety of reasons.41 The ABA, for example, supported reduction of
sentences in exceptional circumstances, both medical and non-medical, including old age,
disability, changes in the law, exigent family circumstances, heroic acts, or extraordinary
suffering.”42
The Department of Justice had a very different view. In a 2006 letter signed by Michael
Elston, senior counsel to the assistant attorney general, the DOJ warned the Sentencing
Commission against adopting any policy inconsistent with the BOP’s narrow interpretation
of compassionate release. “At best, such an excess of permissiveness in the policy
statement would be dead letter, because the Department will not file motions under 18
U.S.C. 3582(c)(1)(A)(i) outside of the circumstances allowed by its own policies.”43
According to a former DOJ official, the 2006 letter “reflected longstanding Department
policy with regard to compassionate release.”44 The letter expressed the Department’s
view that prisoners “should serve an actual term of imprisonment close to that imposed by
the court in sentencing subject only to very limited qualifications and exceptions.”45 The
DOJ was willing to accept sentence reductions in certain cases of terminal illness or
profound and irreversible incapacity because it believed such limited cases would not
undermine the principles of certainty and finality in criminal sanctions that are reflected in
the Sentencing Reform Act.46 The Department also warned that broader guidelines “would
be an incitement to prisoners to file more suits seeking to compel the Department to
exercise its authority under section 3582 (c)(1)(A)(i)—in contravention of its own policies,

41

See, for example, US Sentencing Commission, “Public Hearing Agenda,” Washington, DC, March 20, 2007,

http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20070320/AGD03_20_07.htm
(accessed November 2, 2012).
42

Statement of Stephen A. Saltzburg, on behalf of the American Bar Association, before the US Sentencing Commission,
Washington, DC, March 20, 2007,
http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20070320/Saltzburg-testimony.pdf
(accessed November 2, 2012).
43 Letter from Michael J. Elston, Senior Counsel to the Assistant Attorney General, Department of Justice, to Ricardo H.
Hinojosa, Chair, US Sentencing Commission (Elston Letter), July 14, 2006, p. 4. See appendix for full text of letter.

44 Human Rights Watch interview with former Department of Justice official who requested anonymity, September 19, 2012.

45 Human Rights Watch telephone interview with former Department of Justice official who requested anonymity, September
19, 2012.
46 Elston Letter, p. 4.

THE ANSWER IS NO

24

judgment, and discretion—in order to get them out of prison before they have served their
sentences as imposed by the court.”47
It continued,
At a minimum this would waste the time and resources of the courts and
the Department in dealing with meritless suits of this type, concerning an
issue which simply should not be open to litigation. The risk also must be
considered that some courts might be misled by such a discrepancy
between the policy statement and the Department’s standards and
practices into misconstruing the assignment of responsibility under the
statute for seeking reductions of sentence, and might then enjoin the
Department to seek such reductions under more permissive standards.48
The DOJ overstated the tension between compassionate release and ensuring finality of
judgments. As FAMM pointed out in its response to the Elston letter,
Crafting a [compassionate release] policy statement consistent with
congressional intent will hardly subvert the goals of the SRA. Congress
specifically provided for a sentence reduction authority for extraordinary
and compelling circumstances in the SRA. It included only one specific
limitation: rehabilitation alone would not be sufficient. Had Congress been
concerned that sentence reductions for extraordinary and compelling
circumstances would undermine the goal of determinate sentencing, it
would not have specifically provided for such a broad view of the potential
reasons for sentence reduction.49

47 Elsont Letter, p. 4.

48 Elston Letter, pp. 4-5.

49 Letter from Julie Stewart, President, and Mary Price, Vice President and General Counsel, Families Against Mandatory
Minimums, to Ricardo H. Hinojosa, Chair, US Sentencing Commission, March 19, 2007, http://www.src-project.org/wpcontent/pdfs/public-comment/ussc_publiccomment_20070330/0003328.pdf (accessed November 2, 2012).

25

NOVEMBER 2012

In arguing for a strictly limited approach to compassionate release, the
Department of Justice’s 2006 letter to the Sentencing Commission displayed a
callous pragmatism:
Under the usual mortality in a year standard, the inmate’s
imprisonment would be terminated by death within a year or
less in any event, so the practical reduction of imprisonment
under this standard cannot be more than a year. Nor are the
sentencing system and its underlying objectives undermined
by seeking reductions of sentence in rare cases for prisoners
with irreversible, profoundly deliberating medical conditions….
Such an offender carries his prison in his body and mind, and
will not in any event be living in freedom in any ordinary sense
if released from a correctional hospital facility to be cared for in
some other setting.50

In 2007, the USSC issued its guideline for the courts, which essentially restates the
statute, with the additional proviso that courts should not release prisoners when to do so
would pose a public safety risk.51 But the real work of the guideline is evident in the
application notes that accompany it. Disregarding the exhortations of the DOJ, the USSC
recognized a wide range of possible medical and non-medical situations that might
constitute extraordinary and compelling reasons for release:
Provided the defendant meets the requirements of subdivision (2),
extraordinary and compelling reasons exist under any of the following
circumstances:
(i)

The defendant is suffering from a terminal illness.

(ii)

The defendant is suffering from a permanent physical or medical

50 Elston Letter, p. 4.

51 US Sentencing Commission, “Guidelines Manual,” Section 1B1.13, November 1, 2006,
http://www.ussc.gov/Guidelines/2006_guidelines/Manual/CHAP1.pdf (accessed November 2, 2012), p. 42. Section 1B1.13,
subdivision (2) states that the court should only reduce a term of imprisonment if “the defendant is not a danger to the
safety of any other person or to the community….”

THE ANSWER IS NO

26

condition, or is experiencing deteriorating physical or mental health
because of the aging process, that substantially diminishes the
ability of the defendant to provide self-care within the environment
of a correctional facility and for which conventional treatment
promises no substantial improvement.
(iii)

The death or incapacitation of the defendant's only family member
capable of caring for the defendant’s minor child or minor children.

(iv)

As determined by the Director of the Bureau of Prisons, there exists
in the defendant's case an extraordinary and compelling reason
other than, or in combination with, the reasons described in
subdivisions (i), (ii), and (iii).52

The BOP has never directed its staff to use the USSC guideline as a basis for consideration
of prisoner requests for compassionate release. When we asked BOP officials why the
agency is unwilling to follow the broader USSC explanation of the kinds of circumstances
that might be extraordinary and compelling, they explained that the guidelines are not
binding on them.53 While this may be true as a legal matter, it hardly answers the policy
question. They have also noted that the DOJ is unwilling to accept as grounds for
compassionate release the breadth of circumstances that the USSC accepts.54

52

US Sentencing Commission, “2011 Federal Sentencing Guidelines Manual,” Section 1B1.13, Application Note no. 1,
http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/1b1_13.htm (accessed November 2, 2012).

53 Human Rights Watch interview with Lorna Glassman, Assistant General Counsel, Bureau of Prisons, Washington, DC,

August 15, 2012.

54 Human Rights Watch and Families Against Mandatory Minimums interview with Kathleen M. Kenney, Assistant Director

and General Counsel, Bureau of Prisons, Washington, DC, November 13, 2012.

27

NOVEMBER 2012

II. Compassionate Release in Practice
Compassionate Release Procedures
Procedures may vary somewhat among different Bureau of Prisons facilities, but the basic
compassionate release procedure is as follows. The prisoner, or someone on the
prisoner’s behalf, makes a request to the warden for compassionate release, asking that
the BOP file a motion to reduce his sentence. The governing BOP program statement,
Program Statement 5050.46, requires that the prisoner both explain the circumstances he
or she believes justify compassionate release and provide proposed release plans that
indicate, for example, where the prisoner would reside, where the prisoner would receive
medical treatment if needed, and how the prisoner would cover the costs of such
treatment.55 The BOP does not offer or require a special form for the request; ordinarily a
prisoner will simply use what is known as the “cop out” form that is commonly used to
make any request to staff.
Our communication with current and former prisoners suggests that there is confusion as
to the eligibility requirements for compassionate release.56 The BOP advised us that a copy
of Program Statement 5050.46 is available to prisoners via the Electronic Law Library.57 But
that program statement only describes the procedures the BOP will follow; it does not
provide any explanation of what the BOP might consider “extraordinary and compelling”
reasons for compassionate release. It does not say the Bureau limits motions for sentence
reduction to prisoners with terminal illness or other dire medical conditions or that the
BOP takes into consideration various extraneous criteria such as public safety, severity of
the crime, and community opinion. To the contrary, in the section that directs prisoners to
include a release plan with their request for compassionate release, it requires additional

55 Bureau of Prisons, Program Statement 5050.46, “Compassionate Release; Procedures for Implementation of 18 U.S.C 3582
(c)(1)(A) & 4205(g),” May 19, 1998, http://www.bop.gov/policy/progstat/5050_046.pdf (accessed November 2, 2012). This
overview of the process is drawn from the Program Statement as well as Human Rights Watch and Families Against
Mandatory Minimums meetings with current and former BOP staff—including multiple conversations with the current general
counsel—and prisoners. The Program Statement is included in the appendix.

56 Human Rights Watch asked one former prisoner—who had succeeded in getting compassionate release—what the criteria
were. His response: you have to be terminally ill, have had good conduct while in prison, and not have been convicted of a
violent crime.” Human Rights Watch telephone interview with Charles Costanzo, June 7, 2012.
57 See Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012, p. 5 (on file at Human
Rights Watch and included in the appendix).

THE ANSWER IS NO

28

information from prisoners whose request is for medical reasons.58 Prisoners who are
directed to the Program Statement can understandably operate under an illusion that the
BOP grants compassionate release in non-medical cases.
The prisoner handbooks that each facility provides prisoners with are also of no help to
prisoners exploring whether they might qualify for compassionate release consideration.
We reviewed handbooks from 10 different randomly selected BOP facilities, and none of
them contained any reference to compassionate release.
We asked the BOP if facility staff were responsible for alerting prisoners about
compassionate release when they think the prisoner might be eligible. We were told, “staff
[are] not tasked with the responsibility for initiating the RIS process. They are tasked with
processing the RIS request in accordance with PS 5050.46.”59 No Bureau staff are
responsible for identifying a prisoner or even assisting one who might meet
compassionate release criteria—even one who is terminally ill or medically incapacitated
and thus unable to do so unaided.60
Even getting prison officials to accept a request can be difficult. In one case, a prisoner
repeatedly tried to submit a request for compassionate release to the warden when she
learned her husband, the only caregiver of their two young children, was dying. She was
rebuffed time and time again for a variety of reasons, including that she did not present
sufficient reasons, she was lying about her husband’s condition, and she used the wrong
form. All in all, it took her 12 attempts made over a month-and-a-half before she was able
to get a request to the warden.61

58 The BOP Program Statement directs prisoners to provide information about where they will secure medical care. Bureau of

Prisons, Program Statement 5050.46, Section 571.61(a)(2). The Program Statement also provides for different Central Office
review procedures for requests depending on whether they are based on medical or non-medical grounds. Bureau of Prisons,
Program Statement 5050.46, Section 571.62(a)(3).
59 Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012, p. 6.
60

Ibid. Nevertheless, Human Rights Watch did learn of cases in which staff, such as medical personnel or social workers,
took the initiative to suggest to a prisoner that she begin the reduction in sentence process and then assisted her in doing so.
Staff also may help prisoners pull together the material needed for a release plan.

61 “Conversations with Staff About Compassionate Release,” Memorandum from Victoria Blain (pseudonym) to Mary Price,
Vice President and General Counsel, Families Against Mandatory Minimums, September 20, 2012 (a detailed chronology of
her efforts to submit her request for compassionate release) (reproduced in the appendix ).

29

NOVEMBER 2012

Once a request is submitted, the warden reviews the request and makes a decision as to
whether it warrants approval. There is no hearing or other required procedure in which the
prisoner can orally make a case for release directly to the warden. Although not required by
the Program Statement, most federal prison medical centers (which receive the bulk of
compassionate release requests) have a multi-disciplinary staff committee appointed by
the warden that reviews prisoner requests and then makes a recommendation to the
warden. The committee considers the prisoner’s medical or other circumstances prompting
the request for sentence reduction, the prisoner’s criminal history and institutional record,
and the prisoner’s proposed release plan. It then prepares a memorandum for the warden
summarizing this information and providing its recommendation. At some point in the
process, the US Probation Office takes steps to make sure the release plans are
satisfactory, including sometimes visiting the place to which the prisoner would be
released and talking with family. The office may also consult with other stakeholders in the
community, such as victims who have asked to be notified.
If the warden decides the prisoner’s request warrants approval, he or she sends a referral
packet of information to the appropriate BOP regional director.62 If the request is approved
by the regional director, he or she then sends it to BOP headquarters, where it is reviewed
by the Bureau’s general counsel. If the general counsel decides a request is not medically
warranted, he or she will deny the request.63 The general counsel seeks the opinion of the
BOP medical director if it is a medical case or that of the assistant director of the
Correctional Programs Division if it is a non-medical case.
Although not required by the Program Statement, the general counsel also notifies the
office of the US deputy attorney general regarding requests for sentence reduction that do
not involve terminal illness and consults with the US attorney in the district in which the
prisoner was sentenced to see if there are concerns regarding a sentence reduction. From
January 1, 2011 to November 15, 2012, the BOP sent 11 non-terminal cases to the office of

62

The warden’s referral should include, among other items, her written recommendation as well as recommendations by
staff; copies of the Judgment and Commitment Order, Prisoner Progress Report, pertinent medical records, and Presentence
Investigation Report; and confirmation that release plans have been approved by the appropriate US Probation Office.
Bureau of Prisons, Program Statement 5050.46.

63

See Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012, p. 5. The BOP’s

responses do not say whether the general counsel may also deny non-medical cases.

THE ANSWER IS NO

30

the deputy attorney general. A motion was filed for sentence reduction in all 11 cases.64 The
general counsel’s office may also contact other stakeholders it thinks might be concerned
about the possible early release of an individual prisoner.
The general counsel sends to the BOP director all requests that he or she recommends be
approved. The director makes the final decision on whether to approve the request. If the
director agrees to seek a reduction in sentence, the general counsel’s office drafts the
motion and asks the US attorney in the district in which the prisoner was sentenced to file
it. In 2011, the district courts granted every motion submitted on behalf of the BOP.
When a prisoner’s request is based on a medical condition, staff at all levels are required
by regulation “to expedite” the request,65 but the BOP has not adopted specified time
limits for compassionate release decisions. If the warden denies the prisoner’s request,
the prisoner may appeal through the standard BOP administrative remedy process.

64 Information

provided by James C. Wills, Associate General Counsel, Bureau of Prisons, in an email to Human Rights Watch
and Families Against Mandatory Minimums, November 16, 2012 (on file at Human Rights Watch and Families Against
Mandatory Minimums).

65 28 C.F.R. 571.62(c).

31

NOVEMBER 2012

FMC Butner
Human Rights Watch visited the Federal Medical Center (FMC) at the Butner
Federal Correctional Complex in Butner, North Carolina (FMC Butner), a
medical facility for men and the BOP’s oncology center, on July 30, 2012. We
talked with prisoners and staff who explained the process by which requests
for medical release are handled at the facility.
When a prisoner makes a request based on medical grounds (as is usually the
case), the prisoner’s primary care physician is asked to make a diagnosis and
prognosis (how long the prisoner has to live, in the case of terminal illness).
When the prisoner has cancer, the facility’s Tumor Board will make that
diagnosis and prognosis. If the Tumor Board determines that the prisoner is
medically eligible for sentence reduction (that is, he is within 12 months of
death or physically incapacitated), a social worker consults with the prisoner
regarding a plan for release. The prisoner’s medical condition and the release
plan information are then discussed at a meeting of the seven-person
interdisciplinary Reduction in Sentence Committee (RIS Committee) appointed
by the warden to review prisoner compassionate release requests. During its
review, the RIS Committee not only considers the prisoner’s medical condition
but also the nature of the offense, impact on victims, conduct relevant to the
offense, length of sentence imposed and served to date, family history, prior
criminal history, and institutional adjustment.66 Neither the committee nor
individual members of the committee meet with the prisoner to discuss his
past, his time in prison, his possible rehabilitation, or his likelihood of reoffending given his current condition. Nor do they solicit the views of the
prisoner in writing or give him an opportunity to rebut or explain any concerns
they might have.

66 Most of this information comes from the Presentence Investigation Report, which is included in the prisoner’s central file.

In most federal criminal cases, a US probation officer, governed by Rule 32 of the Federal Rules of Criminal Procedure,
conducts an investigation and writes a report that the sentencing judge will consider when imposing a sentence. This
Presentence Investigation Report is supposed to draw on both the government’s and the defendant’s version of the offense
and contain information on the offender’s family history, education, criminal background, employment record, substanceabuse history, medical condition, and financial status.

THE ANSWER IS NO

32

The committee members discuss whether they think extraordinary and
compelling reasons exist to warrant a sentence reduction, and then they vote.
Judy Pyant, a social worker at FMC Butner who is also chair of the RIS
Committee, told Human Right Watch that the committee members have never
had any training or been shown any materials as to what constitute
“extraordinary and compelling” reasons for compassionate release. The
committee is not given rules or guidance from the warden or other senior BOP
officials regarding how to assess the information presented to them or what
specific questions they should attempt to answer before reaching a decision.
Committee members do not necessarily have any experience in judging public
safety risks or likelihood of recidivism, nor do they use a validated risk
assessment instrument. They are left to deliberate uncharged and undirected,
bringing their own subjective views and concerns to the table. According to
Pyant, “extraordinary and compelling” can mean something different to each
committee member.
Committee members vote by writing down their conclusion and a brief
statement of their reasoning on a slip of paper. The majority vote wins and is
reported to the warden in a memorandum that summarizes the prisoner’s
medical situation, criminal history, and victim impact. It concludes with a
sentence or two regarding the reasons the committee believes the prisoner
should or should not be recommended for compassionate release. Minority
views, if there are any, are not reflected in the memorandum.
The warden is not bound by the committee’s vote. Warden Sara Revell told us
that she could agree with the committee’s recommendation for the same or
completely different reasons from those suggested by the committee, and she
did not need to explain her position. Memoranda we have seen denying
prisoners’ requests for compassionate release consideration typically are
drafted by the committee, and the warden writes “I concur” across the bottom
(see appendix for examples of memoranda by the RIS Committee and signed
by the warden). According to Warden Revell, she rarely disagreed with the
committee when it voted that a prisoner’s request be approved, but she was
more likely to do so when it voted against the prisoner’s request.

33

NOVEMBER 2012

Compassionate Release: The Numbers
We do not know how many prisoners seek compassionate release, because the BOP
Central Office does not maintain records of requests denied by wardens. It only maintains
records of requests that were granted by wardens and hence—pursuant to BOP rules—
subsequently reviewed in the Central Office, or of prisoners’ appeals to the Central Office
of denials of administrative remedies by the warden or regional director.
The General Accounting Office (GAO) recently concluded that the BOP exercises its
authority to seek a judicial reduction of prisoner’s sentence “infrequently.”67 Between
2000 and 2011, the BOP’s Central Office reviewed 444 requests by prisoners for
compassionate release that had been approved by wardens and regional directors and
approved 266, or 60 percent.68 Over 21 years, from 1992 through November 2012, the BOP
made only 492 motions for compassionate release, an annual average of about two dozen.
In 2011, the BOP made 30 motions for sentence reduction, out of 38 requests received in
the Central Office, filed by 37 prisoners (one filed a second request).69 Thirty of the
requests came from prisoners who were terminally ill; the BOP director approved 25 of
them.70 Five of the requests came from prisoners with medical conditions other than
terminal illness, and the director approved all five. There were two cases appealed to the
Central Office in which prisoners sought compassionate release for non-medical reasons.
Both were denied.71 As of November 15, 2012, the BOP had made 37 motions for
compassionate release, all on medical grounds.72

67 US Government Accountability Office, “Bureau of Prisons: Eligibility and Capacity Impact Use of Flexibilities to Reduce
Inmates’ Time in Prison,” Report to Congressional Requestors (“GAO February BOP Report”), GAO 12-320, February 2, 2012,
http://www.gao.gov/assets/590/588284.pdf (accessed November 2, 2012).
68 Bureau of Prisons data obtained by Margaret Love, a private attorney, and provided to Human Rights Watch, October 9,

2012 (on file at Human Rights Watch and Families Against Mandatory Minimums).
69

See Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012, pp. 1-3. The BOP may

well file more motions for sentence reduction in 2012 than it did in 2011. Between January 1 and October 11, 2012, it had
already filed 30 motions. Email communication from Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of
Prisons, US Department of Justice, to Human Rights Watch and Families Against Mandatory Minimums, October 11, 2012.
70 The information that the BOP provided does not give grounds for denial of these cases.

71 According to the BOP, one of these two cases was “denied because the circumstances were not extraordinary and
compelling as expressed in the United States Sentencing Guidelines [§] 1B1.13.” This reference to the USSC guideline is
curious, as we have not seen references to it in other statements by BOP officials denying (much less granting) requests for
compassionate release. The other non-medical case was denied because the “prisoner’s history raised concerns about

THE ANSWER IS NO

34

Not only is the number of motions for sentence reduction extraordinarily small given the size
of the BOP population, but it has not grown commensurate with the growth in the number of
federal prisoners. As shown in Figure 1, in 1994, the BOP housed 95,034 prisoners and made
23 motions for sentence reduction.73 In 2011, even though the federal prison population had
more than doubled to over 218,170, it made only 30 motions.
whether the prisoner could remain crime-free upon release.” Bureau of Prisons, Reponses to Questions Submitted by Human
Rights Watch, July 27, 2012.

72 Information provided by James C. Wills, Associate General Counsel, Bureau of Prisons, in an email to Human Rights Watch
and Families Against Mandatory Minimums, November 16, 2012 (on file at Human Rights Watch and Families Against
Mandatory Minimums).
73 Total number of federal prisoners obtained from Bureau of Justice Statistics, Federal Justice Statistics Resource Center,

http://bjs.ojp.usdoj.gov/fjsrc/var.cfm?ttype=one_variable&agency=BOP&db_type=Prisoners&saf=STK (accessed November
2, 2012).

35

NOVEMBER 2012

Figure 2: FMC Butner – Requests for Reduction in Sentence, 2011

The BOP has
provided us
compassionate
release data
from 2011 for the
federal prison
complex at
Butner, North
Carolina, which
includes a large
federal medical
center. While
the Bureau does
not track
prisoner
requests to
wardens that are
This figure was prepared by the BOP. Data is for prisoners at the federal prison complex
at Butner, North Carolina.

not approved or
appealed, the
Butner data

provided to us included prisoner request numbers. This data highlights the vast difference
between the number of prisoners who sought compassionate release and the number whose
requests the BOP director ultimately approved.74 During 2011, 164 prisoners initiated the
reduction in sentence process by making a request to the warden. As shown in Figure 2, only
66 of them were considered in meetings by the Reduction in Sentence Committee, which
reviews prisoner requests and makes recommendations to the warden; the remaining
prisoners were deemed ineligible for consideration because they were “not medically
warranted” (meaning they did not have a sufficiently terminal or grave medical condition),
had detainers from other jurisdictions (which precludes motions for sentence reduction), or
had died before the committee could consider them.

74

Information on compassionate release at FMC Butner in 2011 was provided by James C. Wills, Associate General Counsel,
Bureau of Prisons, in an email to Human Rights Watch, August 28, 2012 (on file at Human Rights Watch and Families Against
Mandatory Minimums).

THE ANSWER IS NO

36

Figure 3: FMC Butner – Warden Decisions on Reduction in Sentence Requests,
2011

This figure was prepared by the BOP. Data is for prisoners at the federal prison complex at
Butner, North Carolina.

As shown in Figure 3, of the 66 cases that were reviewed by the Reduction in Sentence
Committee and then sent to the warden, the warden denied 12 on the grounds that early
release might jeopardize public safety. The warden approved 15 of the remaining 54
requests and forwarded them to the regional director. Seventeen requests were pending a
decision, and 22 prisoners died while awaiting the warden’s decision.75
Of the 15 requests the warden sent to the regional director, all were approved. The BOP
director subsequently approved 12 of the 15 forwarded by the regional office; two were
denied because they were “not medically appropriate for consideration,” and one prisoner
was denied because he “posed a risk to the community.”76
In short, out of the 147 requests made by prisoners at FMC Butner in 2011 (not including
the 17 in which decisions from the warden were still pending at the close of 2011), 12 were
ultimately approved by the director as suitable for a motion for sentence reduction, where

75 We did not know the outcome of the requests that were pending as of the end of calendar year 2011.

76 Email communication from James C. Wills, Associate General Counsel, Bureau of Prisons, to Human Rights Watch, August
28, 2012.

37

NOVEMBER 2012

the prisoner had not died before that approval. Reflecting the gravity of their conditions,
22 prisoners who requested compassionate release in 2011 died while still behind bars.
Victor Elliott
Victor Elliott (pseudonym), age 47, entered federal prison on November 9,
2010 to serve a twenty-year mandatory minimum sentence for being part of a
heroin distribution conspiracy that resulted in the deaths from overdose of
three people. The conspiracy included Elliott, a former heroin addict himself,
and two other people whose only connection was that they bought drugs for
resale from the same wholesaler.77 Elliot was directly responsible for the
accidental overdose death of one person to whom he provided the drugs; he
denies any involvement with the other dealers or the deaths of their clients.
Currently confined at FMC Butner, Elliott has an inoperable malignant brain
tumor—“the size of a golf ball”—which did not respond to chemotherapy and
radiation. According to the Butner oncologist, Elliott has less than a year to
live.78 He also has two ruptured discs in his lower back, is confined to a
wheelchair, has problems moving his left arm and leg, and suffers chronic
severe headaches. He apparently spends much of the day asleep. He has a
sister who is willing to act as his caretaker and who provided plans to ensure
he received appropriate medical care.
Elliot sought compassionate release at the recommendation of his oncologist.
Although he is close to illiterate, and “can’t spell worth a darn,” none of the
staff helped him with his application. On January 12, 2012, the Reduction in
Sentence Committee reviewed Elliott’s request. The committee’s memorandum
recounts information contained in Elliott’s Presentence Investigation Report,
including the overdose deaths of people caused by drugs they bought from
Elliott’s “co-conspirators.” The committee also cited Elliott’s prior drug and
battery convictions and details about other-drug related activities by Elliott.
There is no discussion, however, about whether Elliott would be likely to rejoin

77 Except as otherwise noted, the information about Victor Elliot came from correspondence between Human Rights Watch
and Elliott (on file at Human Rights Watch) and our interview with him at the Federal Medical Center, Butner, North Carolina,
July 30, 2012. All of the quotations from Elliot come from the interview.
78 Human Rights Watch interviewed Dr. Andre Carden, Elliott’s oncologist, at the Federal Medical Center, Butner, North
Carolina, July 30, 2012.

THE ANSWER IS NO

38

the drug business given his brain cancer and confinement to a wheelchair or
whether his expressed desire to spend his remaining months of life with his
family and to make amends with his granddaughter is genuine. Although the
committee acknowledged that Elliot had a poor medical prognosis, it
concluded that his request should be denied because, “due to the severity of
your crime and the fact that you have only served a small portion of your
sentence, the committee expressed concerns about the possibility of your
ability to re-offend.”79 The warden concurred with the committee’s
recommendation on January 19, 2012.80

79 Memorandum from Sara M. Revell, Complex Warden, FMC Butner, to Victor Elliot (pseudonym), January 12, 2012 (on file at

Human Rights Watch).
80 Ibid.

39

NOVEMBER 2012

III. Federal Policies on Compassionate Release
“I urged more release for older, chronically ill offenders who couldn’t fight
their way out of a paper sack, but the Central Office was simply not
interested.”
– Joe Bogan, former BOP official who retired in 2000 after 17 years as a
federal warden, telephone interview, July 15, 2012
It is unclear why the Bureau of Prisons adopted criteria that guarantee that only a paltry
number of motions for sentence reduction will be filed each year. We believe the view that
few prisoners should benefit from compassionate release is deeply rooted in the BOP’s
history and institutional culture and reflects the preferences of the Department of Justice,
of which the BOP is a part. BOP Assistant Director and General Counsel Kathleen Kenney
told us the Bureau’s philosophy has long been that compassionate release should be used
sparingly, although she could not tell us the origins of that approach.81
The BOP has been able to take a restrictive approach to compassionate release because
Congress never specified the criteria it should use. The Department of Justice has taken
the position that the BOP has unfettered bureaucratic discretion with regard to
compassionate release because Congress statutorily committed the task of filing motions
for compassionate release in court to the BOP and did not specify in the statute the
circumstances under which the BOP should do so. According to the DOJ,
[W]hile “extraordinary and compelling reasons” are a permissible basis for
the Director of the Bureau of Prisons to make a motion to reduce the term of
imprisonment of an inmate, Congress has not specified what reasons or
criteria the Bureau must consider in making this determination. Rather, this
determination is within the discretion of the Director.82

81 Human Rights Watch and Families Against Mandatory Minimums interview with Kathleen M. Kenney, Assistant Director
and General Counsel, Bureau of Prisons, Washington, DC, November 13, 2012.
82

Government’s Response to Defendant’s Motion for a Reduction in Sentence, US v. Dresbach, No. 03-80504 (E.D.M.I.) (filed
November 11, 2010), p. 9.

THE ANSWER IS NO

40

In practice, the BOP decides for itself what the criteria for compassionate release should
be, ignoring the Sentencing Commission’s guidelines, and it takes into consideration any
factors it chooses, including those that Congress told the courts to consider.
As a constituent component of the DOJ, under the direction and supervision of the deputy
attorney general, the BOP does not adopt or pursue policies inconsistent with those of the
DOJ, nor does it promulgate official regulations without going through a DOJ review and
approval process.
Deputy Attorney General James Cole declined to meet with us for this report, or to assign
other staff from his office to do so. Instead of answering our written questions to him about
the Department’s guidance to the BOP with regard to compassionate release policy and its
views concerning the role of compassionate release in the federal criminal justice system,
he had the BOP send us a letter that offered little insight into the DOJ’s thinking. (Our letter
to the deputy attorney general and the response from the BOP on behalf of the deputy
attorney general are reproduced in the appendix). Practitioners and others knowledgeable
about the Bureau’s recent practice indicate that the DOJ’s approach to compassionate
release remains the same as reflected in the 2006 Elston letter.83
It is not surprising that the DOJ would want BOP motions for sentence reduction restricted
to very few cases. As Glenn Fine, former inspector general for the DOJ told us, “a
prosecutorial perspective permeates the institution.”84 Paul McNulty, former deputy
attorney general, agreed that the Department’s institutional culture is one in which a “law
enforcement and prosecutorial perspective” tends to predominate.85 As Rachel Barkow, a
law professor who has studied the DOJ, recently wrote,
The dominance of law enforcement interests at the Department is a
reflection of the dominance of law enforcement interests in the politics of
criminal justice…. [N]ot only do [prosecutors] have an interest in longer
sentences and mandatory punishments; they also have an interest in
83 Human Rights Watch telephone interviews with current DOJ official who requested anonymity, August 28, 2012; and with

former DOJ officials who requested anonymity, September 19, 2012 and September 21, 2012.

84 Human Rights Watch telephone interview with Glenn Fine, former Inspector General, US Department of Justice, September

21, 2012.

85 Human Rights Watch telephone interview with Paul McNulty, former Deputy Attorney General, US Department of Justice,
September 18, 2012.

41

NOVEMBER 2012

opposing corrections reforms that make the conditions of confinement
more relaxed or that result in earlier release times.86
In addition to its influence on compassionate release policy, the DOJ can affect BOP
decisions in individual cases. When the BOP is reviewing a prisoner’s request for a
sentence reduction, it consults with the US attorney in the judicial district in which the
prisoner was sentenced. “The Bureau considers the information provided by the United
States Attorney’s Office in making a decision regarding a [reduction in sentence]
request.”87 According to BOP Assistant Director and General Counsel Kenney, in most
cases the US attorney raises no objection about compassionate release cases.88 But if
there is a conflict, it must be resolved before the BOP director approves a motion. In nonterminal cases for compassionate release—for example, one in which the prisoner has a
non-terminal illness or is seeking compassionate release on non-medical grounds—if the
BOP director is considering approval of the recommendation, the case will be sent to the
office of the deputy attorney general first, before the BOP director makes a final decision.89
The Bureau was not willing to describe even in general terms deputy attorney general
communications to the BOP in such cases.
Determinations regarding medical eligibility, such as whether a prisoner is within twelve
months of dying, are made by BOP medical staff. But beyond the confines of medical
determinations, there is little guidance, and thus much room for inconsistency,
subjectivity, and even arbitrariness in decisions regarding whether to bring motions to the
court for compassionate release.90
Wardens are the pivotal figures in the compassionate release process because their
decisions to not recommend approval of prisoner requests are almost never overturned.
86 Rachel E. Barkow, “Prosecutorial Administration,” New York University Public Law and Legal Theory Working Papers, Paper

345, August 1, 2012, http://lsr.nellco.org/cgi/viewcontent.cgi?article=1346&context=nyu_plltwp (accessed November 2,
2012), pp. 37-38.

87 Letter from Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of Prisons, to Human Rights Watch,
October 22, 2012.

88 Human Rights Watch and Families Against Mandatory Minimums interview with Kathleen M. Kenney, November 13, 2012.
89 Human Rights Watch interview with Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of Prisons,

Washington, DC, May 30, 2012; Human Rights Watch and Families Against Mandatory Minimums interview with Kathleen M.
Kenney, November 13, 2012.

90 The Hawk Memo contains a laundry list of factors for staff to consider, but provides no guidance as to how different factors
should be weighted or evaluated. Memorandum from Kathleen M. Hawk, former Director, Bureau of Prisons, to executive staff
(Hawk Memo), July 22, 1994, p. 2.

THE ANSWER IS NO

42

Their “no” becomes the BOP’s “no.” On the other hand, senior officials may and do deny
cases wardens have recommended. BOP data from 2000 through 2011 indicate that the
BOP Central Office denied prisoner requests in 40 percent of the cases the wardens and
regional directors recommended for approval.91
The BOP provides scant training to wardens on how to exercise their discretion and little
oversight of their decision-making. If a warden wants to deny a prisoner’s request for
compassionate release consideration because he believes the prisoner’s crime is heinous,
there are no BOP instructions or guidance that tell him such beliefs should not play a role
in his decision. Our interviews with former and current wardens suggest that while
wardens learn from “experience” and familiarity with the BOP institutional culture what
prisoner circumstances the Central Office is likely to consider worthy of sentence reduction,
their approach to individual cases varies.92 A former warden, for example, told us he
approved every request from a prisoner who met the medical criteria for terminal illness or
incapacitation, even if he assumed it would be rejected by his superiors.93
Former warden Joe Bogan told us he did not want to “waste his superiors’ time” by sending
them cases he knew they would deny.94 But sometimes the Central Office did reject cases
he had recommended. He recounted the case of a young woman serving time for minor
drug dealing who developed ovarian cancer. He approved her request for compassionate
release and forwarded it up the chain of command. The Central Office turned it down
because of the possibility she might re-offend. Bogan thought the decision was
“ridiculous.” A few months later, the woman died behind bars.95

91

Bureau of Prisons data obtained by Margaret Love, a private attorney, and provided to Human Rights Watch, October 9,

2012 (on file at Human Rights Watch and Families Against Mandatory Minimums). For 2011, the information was provided in
Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012, p. 5.
Human Rights Watch interview with Sara M. Revell, Complex Warden, FMC Butner, North Carolina, July 31, 2012; Human
Rights Watch telephone interviews with former warden Art Beeler, July 15, 2012; with former warden Joe Bogan, July 15, 2012;
and with a former warden who requested anonymity, July 17, 2012.
92

93

94
95

Human Rights Watch telephone interview with a former warden who requested anonymity, July 17, 2012.
Human Rights Watch telephone interview with Joe Bogan, July 15, 2012.
Ibid.

43

NOVEMBER 2012

Michael Mahoney
Michael Mahoney was sentenced in 1994 to a mandatory minimum term of 15
years as an “armed career criminal.” The “career criminal” designation derived
from three drug sales totaling less than $300 to an undercover agent over a
three-week period in the late 1970s.96 Felons, like Mahoney, may not legally
possess firearms. Erroneously believing that enough time had lapsed since his
prior convictions to allow him to carry a gun, Mahoney had purchased one to
protect himself when making night deposits from his small business. When
the gun was stolen, he duly reported it to authorities, his error was discovered,
and he was prosecuted.97 Years later, in 2004, Mahoney was dying in prison
from lymphoma and asked for compassionate release. The warden at the
Lexington Federal Medical Center thought the BOP should file a motion on his
behalf, and the regional director agreed.
In late July, BOP Director Harley Lappin denied Mahoney’s request, even
though the regional director had approved the request and it was unopposed
by the US attorney. Lappin’s decision was based on “the totality of the
circumstances” and Mahoney’s “multiple felony convictions.”98
On July 26, 2004, Judge James D. Todd, who had sentenced Mahoney, hearing
of the director’s denial, wrote to Lappin, stating that in 20 years on the bench
he had never before written to a corrections official on behalf of a prisoner he
had sentenced. Describing the circumstances of Mahoney’s conviction, he said
that “Mr. Mahoney’s case has troubled me since I sentenced him in 1994 … [as]
one of those cases in which a well-intentioned and sound law resulted in an
injustice.” He said he was aware that Mahoney was bedridden, suffering great
pain, and considered near death. He suggested “that … a motion [for
compassionate release] is the only way to mitigate in a very small way the
harshness which [the Armed Career Criminal Act] has caused in this unusual
and unfortunate case.”99 Lappin did not reply. Mahoney died a few days later.

96
97
98
99

Gary Fields, “‘Career Felons’ Feel the Long Arm of Gun Laws,” Wall Street Journal, July 3, 2001.
Ibid.
Memorandum from Karen L. Dellarocco, Office of Legislative Affairs, Bureau of Prisons, to Scott Keefer, July 27, 2004.
Letter from Judge James D. Todd to Harley G. Lappin, then director, Bureau of Prisons, July 26, 2004.

THE ANSWER IS NO

44

Medical Conditions
According to the BOP’s medical director, a terminal condition which leads to a motion for a
reduction of sentence is usually the result of a particular illness, such as metastasized
cancer.100 A terminal condition may also result from severe co-morbidities, such as a
combination of physical problems like congestive heart failure and liver failure, which,
taken together, lead to a prognosis of very limited life expectancy.101 In the category of
profound and irremediable debilitation or incapacity, the BOP includes such conditions as
Parkinson’s Disease, Amyotrophic Lateral Sclerosis (ALS), Alzheimer’s Disease, and
permanent brain injury, paralysis, and ventilator dependency.102 We learned, for example,
of a case in which the BOP moved for the sentence reduction of a woman serving time for
minor drug offenses who developed Lou Gehrig’s disease. The woman was able to go
home to be with her seven-year-old daughter for the time remaining to her.103
Our research reveals that the majority of compassionate release motions brought by the
BOP are for prisoners who are terminally ill.104 Thus, for example, the BOP moved for a
sentence reduction for 51-year-old Charles Costanzo, a first-time offender who was serving
a 70-month sentence for embezzling from a worker’s compensation fund. In April 2012,
three years into his sentence, Constanzo was diagnosed with stage IV stomach cancer that
had already spread to his lymph nodes and diaphragm. His condition was clearly and
imminently terminal. According to Costanzo, the prosecutor in his case originally balked at
the prospect of compassionate release, but later agreed.105 The BOP moved for a sentence
reduction, which the sentencing judge granted.106 Constanzo was released on July 24, 2012
to his mother’s home, and he died on October 11, 2012.107

100
101
102
103
104

Human Rights Watch telephone interview with Dr. Newton Kendig, Medical Director, Bureau of Prisons, August 23, 2012.
Ibid.
Ibid.
Human Rights Watch telephone interview with Joe Bogan, July 15, 2012

We do not know if that is because more requests for compassionate release are made by prisoners with terminal illness
or because those are the ones the BOP is more likely to grant.
105

Human Rights Watch telephone interview with Charles Costanzo, June 7, 2012. HRW talked with Costanzo while he was
still in BOP custody, but confined in a nursing home which was able to provide the medical care he required following
chemotherapy.

106 Steve McConnell, “Convicted embezzler Charles ‘Chuckie’ Costanzo to be released from federal prison,” The Time-Tribune
(Scranton, PA), July 23, 2012, http://thetimes-tribune.com/news/convicted-embezzler-charles-chuckie-costanzo-to-bereleased-from-federal-prison-1.1347213 (accessed November 5, 2012).

107 “Charles ‘Chuckie’ Costanzo Dies,” The Times-Tribune (Scranton, PA), October 12, 2012, http://thetimestribune.com/news/charles-chuckie-costanzo-dies-1.1386776 (accessed November 5, 2012).

45

NOVEMBER 2012

Calculating life expectancies for terminal illness is not a precise science, but the BOP
insists that the prognosis for the life expectancy of terminally ill prisoners be 12 months or
less before it will make a motion for sentence reduction. Apparently, even when a
condition is terminal and debilitating, if the doctor cannot state a 12-month prognosis, the
Bureau will not recommend compassionate release.

Raymond Branson
In early March 2012, Raymond Branson (pseudonym), serving a 48-month
fraud sentence, was preparing to enter a halfway house to complete the final
six months of the Residential Drug Abuse Program (RDAP).108 Successful RDAP
participants can earn up to one year off their sentences. Branson had already
received confirmation of his new release date of September 12, 2012,
representing a full year sentence credit. But, just before he was to enter the
halfway house to finish the program requirements, Branson was rejected
because he had been diagnosed with stage IV gastric cancer. His original
release date of September 2013 was reinstated.
His attorney wrote to the BOP seeking a reduction in sentence for
compassionate release. A month passed before the warden responded,
referring the case to the Tumor Board. Branson’s lawyer, concerned by the
delay, moved the court to compel the BOP to seek compassionate release,
citing the impossible “catch-22” Branson faced: once eligible for immediate
release to the halfway house, he was now prevented by his cancer from
entering the halfway house. Because he was too sick to complete the halfway
house portion of the drug abuse program, he lost the 12-month credit he had
been expected to earn. But the BOP was unable to determine with certainty
that he would die within the 12 months.
The sentencing judge clearly favored Branson’s release. At a hearing on the
motion, he said that the government and defense attorney should work

108

This account of the Branson case was drawn from conversations and correspondence with his lawyer, pleadings and
court documents, and BOP documents on file at Families Against Mandatory Minimums.

THE ANSWER IS NO

46

together to find a solution. If Branson could secure medical care after release
from prison, “[i]t seems to me it’s not in anybody’s best interests, assuming
Mr. [Branson] is as sick as is represented, to have him remain in prison.
Obviously it would be very difficult for him. It would be a burden on the prison
system and also an expense to the government, which it seems to me is not a
good idea for anybody.”109 The court denied the motion pending further
information. The BOP was unable to ascertain a prognosis and so set his case
off repeatedly for assessment.
In September, Branson’s attorney again moved the court, citing the delayed
assessment and Branson’s deteriorating medical condition. Certain that
Branson would not survive the year, his lawyer wrote, “Mr. [Branson] is being
punished because he is dying of cancer – he is being precluded from entering
[a halfway house] which he is otherwise eligible for and he is losing jail-time
credit even though he already completed RDAP.”110
Reluctantly, the court denied the motion. “While the Court is sympathetic to
Defendant’s condition and, in particular, the fact that, on account of such
condition, Defendant has been denied placement in a [halfway house], the
Court is without authority to award Defendant the relief sought…,” it said.111
As of this writing, Branson’s cancer has spread to other organs, the Tumor
Board has been unable to determine a date of death, and he remains in
prison.

The BOP does not consider old age and the frailty and declining physical and mental
abilities that ordinarily accompany it as sufficient medical grounds for a motion for
sentence reduction.112 For example, Brian Simpson (pseudonym) is an 84-year-old federal

109

Transcript of Motion Hearing, May 31, 2012, p. 2.

110 Emergency Motion to Reduce Sentence and Provide Other Equitable Relief Pursuant to 28 U.S.C.§ 2255, p.3 (filed

September 26, 2012).

111 Order on Defendant’s Emergency Motion to Reduce Sentence and Provide Other Equitable Relief Pursuant to 28 U.S.C.

section 2255 (October 9, 2012).

112 Human Rights Watch telephone interview with Dr. Newton Kendig, Medical Director, Bureau of Prisons, August 23, 2012.

47

NOVEMBER 2012

prisoner who began serving a 10-year sentence in 2006 for conspiracy to defraud the
United States and obstruction of justice.113 Although doctors do not describe his medical
condition as terminal, his daughter insists his medical condition has rapidly deteriorated
since his incarceration. He has been hospitalized several times, including once for heart
failure; has fluid buildup in his lungs that must periodically be drained; and suffers
increasingly from a variety of other physical problems, including diabetes, hypertension,
anemia, severe arthritis, and possible renal failure. His mobility is poor and he walks with
a cane. He is not allowed to work because of his medical condition. His daughter describes
him as “a sad, sick old man with many medical problems.”114 The BOP has denied his
requests for consideration for compassionate release because it does not consider his
circumstances to be extraordinary and compelling.115
If the BOP were guided by the USSC’s guideline governing compassionate release, the
number of motions for early release on medical grounds would doubtless be considerably
greater. The guideline recognizes that extraordinary and compelling reasons for a sentence
reduction can exist when a prisoner suffers from a terminal illness or when a prisoner’s
capacity to care for himself in prison is substantially diminished because of illness.116
There is more latitude here than under the rigid criteria the BOP uses. For example, the
USSC does not mandate a 12-month prognosis of death.
Out of a population of over 218,000 prisoners, there are undoubtedly many more than the
30 cases granted in 2011 for terminal or other medical conditions who might meet the
USSC criteria. Hundreds of prisoners die each year from illness, and many of those deaths
are no doubt predictable, rendering the prisoners eligible for compassionate release.117 At

113 Information regarding efforts of Brian Simpson (pseudonym) to obtain compassionate release is based on extensive

email and telephone communication with his daughter and on review of materials pertinent to his case that she provided to
Human Rights Watch (on file at Human Rights Watch).
114 Letter from Simpson’s daughter to Charles E. Samuels, Director, Bureau of Prisons, September 6, 2012 (on file at Human

Rights Watch).

115 Response to Prisoner Request, by H.L. Hufford, Warden, to Staff Member, January 17, 2012 (on file at Human Rights Watch).
116 US Sentencing Commission, “2011 Federal Sentencing Guidelines Manual,” Section 1B1.13, Application Note no. 1,

http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/1b1_13.htm (accessed November 2, 2012).

117 For example, in 2008, the most recent year for which published data is available, 358 federal prisoners died from illness.

Bureau of Justice Statistics, “Deaths of prisoners under federal jurisdiction, by cause of death, 1999-2008,”
http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=194 (accessed August 22, 2012). However, we do not assume every prisoner
who is terminally or gravely ill wants compassionate release. Some, for example, do not have family to care for them or want
to stay with the “family” they have made behind bars.

THE ANSWER IS NO

48

FMC Butner alone, over the six-month period between October 1, 2011 and March 31, 2012,
60 prisoners died whose deaths were predictable because of the nature of their illness.118
The BOP also has a growing population of elderly prisoners, many of whom will experience
diminished physical and mental abilities while in prison.119 At the end of 2010, there were
7,107 men and women in federal prisons who were age 61 and older, including 74 who were
over 80.120 The commentary to the USSC guideline states that “deteriorating physical or
mental health because of the aging process … that substantially diminishes the ability to
provide self-care” in prison may constitute extraordinary and compelling circumstances.121

Non-Medical Grounds for Compassionate Release
BOP Assistant Director and General Counsel Kathleen M. Kenney has acknowledged that,
at least in the last twenty years, the Bureau has not made any motions for compassionate
release for prisoners whose extraordinary and compelling reasons were not medical.122
The BOP views hardship to families as part of the price of incarceration and hence as
insufficiently “extraordinary and compelling” to warrant early release. John Yardley
(pseudonym) sought compassionate release in early 2008 because his young daughter
was dying of brain cancer. He was serving a sentence of 66 months for conspiracy to
possess and distribute methamphetamine and had an extensive criminal record. The
warden rejected Yardley’s request: “I cannot find extraordinary or compelling

118 Data on the number and causes of deaths at FMC Butner provided by the Office of the Chief Medical Examiner, North Carolina,

to Human Right Watch, May 25, 2012. The listed causes of death were reviewed at our request by Dr. Robert Greifinger to
determine which were predictable (for example, metastatic pancreatic cancer) and which may not have been predictable (for
example, “blunt force trauma from fall”). Email communication from Dr. Robert Greifinger to Human Rights Watch, May 25, 2012.
We do not know how many of those who died during the six-month period had sought compassionate release.

119 Federal prisons, like state prisons, confine an ever-growing number of elderly prisoners “who cannot readily climb stairs,
haul themselves to the top bunk, or walk long distances to meals or the pill line; whose old bones suffer from thin
mattresses and winter’s cold; who need wheelchairs, walkers, canes, portable oxygen, and hearing aids; who cannot get
dressed, go to the bathroom, or bathe without help; and who are incontinent, forgetful, suffering chronic illnesses, extremely
ill, and dying.” Human Rights Watch, Old Behind Bars: The Aging Prison Population in the United States, January 28, 2012,
http://www.hrw.org/reports/2012/01/27/old-behind-bars-0.
120 Data obtained from Bureau of Justice Statistics, Federal Justice Statistics Resource Center,
http://bjs.ojp.usdoj.gov/fjsrc/var.cfm?ttype=one_variable&agency=BOP&db_type=Prisoners&saf=STK (accessed October
11, 2012). Analysis conducted October 11, 2012.
121 US Sentencing Commission, “2011 Federal Sentencing Guidelines Manual,” Section 1B1.13, Application Note no. 1,
http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/1b1_13.htm (accessed November 2, 2012).

122 Human Rights Watch and Families Against Mandatory Minimums interview with Kathleen M. Kenney, Assistant Director
and General Counsel, Bureau of Prisons, Washington, DC, November 13, 2012.

49

NOVEMBER 2012

circumstances to warrant recommending approval of your request for compassionate
release. I have enormous compassion for your dying daughter. However, your situation is
not unlike many other incarcerated prisoners in similar situations.”123 Upholding the
warden’s denial, the administrator for national prisoner appeals in the Central Office noted,
While extreme, your situation is not significantly different than other
prisoners whose families experience profound hardship as the result of a
loved one’s incarceration. Regrettably, family hardship, even extreme
family hardship, is an unfortunate consequence of incarceration, and is not,
therefore, extraordinary and compelling in a manner that supports the
Bureau’s motioning the sentencing court to release you from the balance of
your prison sentence.124

Mary Samuels
Mary Samuels (pseudonym) was sentenced in 1993 to over 30 years in prison after
pleading guilty to participating in a bank robbery and use of a weapon.125 When
she entered prison, she had completed only the third grade, was dependent on
drugs and alcohol, and had lost custody of her children.
According to the warden, Samuels “participated extensively in programs to better
herself and prepare for her release.”126 She earned her high school diploma,
began college courses, and completed a business management certificate from a
community college. She also engaged in a variety of self-help and sober programs
and has worked for UNICOR industries for 14 years, receiving incentive awards.
Between 2002 and mid-2006, while she was incarcerated in a federal prison in
Tallahassee, Florida, male prison guards sexually abused Samuels and other
female prisoners. Samuels filed a lawsuit against guards and officials, settling

123 Denial by J.D. Whitehead, Warden, Federal Prison Camp, Yankton, South Dakota, March 19, 2008 (on file at Human Rights
Watch). The warden allowed Yardley, under escort, to visit his daughter at her bedside a few times and to make extra phone
calls to her.
124 Response to Administrative Remedy No. 487258-A, signed by Harrell Watts, Administrator, National Prisoner Appeals,

Bureau of Prisons, March 27, 2008.

125 This account was drawn from correspondence and court documents on file at Families Against Mandatory Minimums.
126 Memorandum from Nicole C. English, Warden, to Michael K. Nalley, Director, North Central Regional Office, Bureau of

Prisons (“English Memorandum”), September 2, 2010.

THE ANSWER IS NO

50

some claims and winning an award against one of her abusers for $2.2 million.
In 2010, Samuels sought compassionate release, citing the abuse, her diagnosis
of post-traumatic stress syndrome, and her inability to secure psychological help
for it. Her son was eager to provide her a home and a job. The warden
recommended her release:
Based on the circumstances of her instant offense, her lack of
prior criminal history, has [sic] served over two-thirds of her
sentence, has [sic] gained educational and vocational skills and
having family support, housing, and employment, prisoner
[Samuels] appears to pose low risk to recidivate or a risk to public
safety. In addition, her sexual abuse during incarceration was an
extraordinary, unforeseen circumstance that could not have been
considered by the sentencing court.127
The regional director rejected the warden’s recommendation, concluding that
Samuels’ “circumstance, although unfortunate, does not merit a compassionate
release.”128 The regional director reiterated the rejection when Samuels appealed
it, stating “staff did not consider your situation an extraordinary and compelling
circumstance to warrant an early release.”129 The Central Office concurred:
You cite the fact that you have served over half you sentence; you
have taken advantage of educational opportunities during your
incarceration; and you were victimized by staff. All aspects of your
circumstances, including criminal history, are taken into
consideration … however these factors are not extraordinary
enough to warrant a reduction in sentence.”130 Samuels then
sought relief in federal court but was denied because the court did
not have jurisdiction to grant her relief.

127
128

English Memorandum, p. 2.
Memorandum from Michael K. Nalley, Regional Director, to Nicole C. English, Warden, November 2, 2010

129 Regional Administrative Remedy Appeal, Michael K. Nalley, Regional Director, March 18, 2011.

130 Administrative Remedy No. 618677-A2, Harrell Watts, Administrator, National Inmate Appeals, Bureau of Prisons,
November 17, 2011.

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NOVEMBER 2012

Foreseeability
The BOP will consider requests for compassionate release if the “extraordinary and
compelling” circumstances “could not reasonably have been foreseen by the court at the
time of sentencing.”131 This language is ambiguous: does the rule require the circumstances
to have been foreseeable in theory or that they were actually foreseen by the judge?
According to Lorna Glassman, a BOP assistant general counsel, if a person had cancer but it
was in remission at the time of sentencing, and the cancer returns during his imprisonment,
the Central Office would not necessarily deny his request for sentence reduction because
the return of cancer might have been foreseeable.132 Wardens have, nonetheless, denied
prisoner requests for compassionate release consideration on the ground their illness was
known at the time of sentencing—even if they were not dying at that time.
For example, Daniel Young was 58 when he was sentenced in 2010 to 51 months of
imprisonment after conviction for Medicare fraud. At the time, he had hepatitis C and
diabetes, for which he was being treated; he was sick but not dying. Two years later, Young
was dying of liver and renal failure. In January 2012, the warden told Young’s wife that
Young would not be eligible for compassionate release because his “medical condition is
clearly documented in his Presentence Investigation Report.”133 Young died two months
later, still incarcerated.134
When Evan Quinones entered prison in 2000 to serve a sentence of 96 months for heroin
trafficking, he was HIV positive. Five years later, on September 15, 2005, his mother was
informed by letter that he was “seriously ill,” and a month later, she was informed he was
“critically ill.”135 By November of that year, he was expected to live only a few months due
to myriad medical problems, including AIDS, Hepatitis C, cirrhosis, pancreatitis and other
conditions. He was denied compassionate release, however, because according to the

131 28 C.F.R. 571.60.

132 Human Rights Watch interview with Lorna Glassman, Assistant General Counsel, Bureau of Prisons, Washington, DC,

August 15, 2012.

133 Letter from C.V. Rivera, Warden, Federal Correctional Complex, Beaumont, Texas, to Cheryl Young, January 25, 2012.
134 Information is from Human Rights Watch telephone interview with Cheryl Young, May 10, 2012; and from letters and

documents provided to Human Rights Watch by Cheryl Young (on file at Human Rights Watch).

135 Letters

from Robert H. Hazelwood, M.D., Bureau of Prisons, to [name withheld], September 15, 2005 and October 13, 2005.

THE ANSWER IS NO

52

warden, “the Court was aware of [his] medical condition at the time of sentencing.”136
Quinones died in prison.137

136 Letter to Hon. Eliot L. Engle from Robert McFadden, November 16, 2005.

137 Information from Bureau of Prisons Inmate Locator,
http://www.bop.gov/iloc2/InmateFinderServlet?Transaction=NameSearch&needingMoreList=false&FirstName=Evan&Middl
e=&LastName=Quinones&Race=U&Sex=U&Age=&x=0&y=0 (accessed November 20, 2012).

53

NOVEMBER 2012

IV. Public Safety and Compassionate Release
The general counsel of the Bureau of Prisons recently told us, “As a law enforcement
agency, the Bureau’s mission to protect society includes a responsibility to provide for
public safety and make decisions with public safety in mind…. [W]e consider it the
Bureau’s responsibility to consider public safety when determining whether to pursue a
prisoner’s release through a [motion for sentence reduction].”138 The BOP assesses “public
safety concerns” and the “totality of the circumstances” when deciding whether a motion
for sentence reduction is warranted.139 Indeed, public safety and other criminal justice
concerns can trump all other factors, even for prisoners who are medically eligible, have an
acceptable release plan, 140 and have no detainers from other jurisdictions pending.141
Surprisingly scant public attention has been paid to the BOP’s unilateral assumption of
authority to assess the public safety implications of prisoners’ early release. This exercise
of BOP discretion is troubling because Congress specifically directed the federal judiciary,
not the Bureau, to assess the impact on public safety in making sentence reduction
decisions. There is no question that the BOP must protect the public by ensuring prisoners
under its jurisdiction do not escape, and that it must assess the risk of dangerous behavior
when making furlough or halfway house decisions.142 The BOP is the sole decision-maker

138 Letter from Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of Prisons, to Human Rights Watch,

October 22, 2012. See also Bureau of Prisons, “Legal Resource Guide to the Federal Bureau of Prisons 2008,” November 25,
2008, http://www.bop.gov/news/PDFs/legal_guide.pdf (accessed November 2, 2012) (“Being mindful of its mission to
protect society, the BOP utilizes [compassionate release] sparingly. Historically, motions for Reduction in Sentence … have
been filed only on behalf of prisoners suffering from terminal medical conditions, or who are severely and permanently
mentally or physically debilitated. Additional facts that are carefully considered include, but are not limited to, the nature of
the crime committed, the length of the prisoner’s sentence, the amount of time served, and the prisoner’s ability to continue
criminal activity.”).

139 Letter from Michael J. Elston, Senior Counsel to the Assistant Attorney General, to Ricardo H. Hinojosa, Chair, US

Sentencing Commission (Elston Letter), July 14, 2006, p. 5.

140 The BOP will not make a motion for compassionate release if the prisoner does not have a suitable place to live and

access to necessary medical care and the means to pay for it. BOP officials emphasize the difficulty of finding an appropriate
place for prisoners as an impediment to greater use of its compassionate release authority. Human Rights Watch interview
with Charles Samuels, Director, Bureau of Prisons, Washington, DC, May 30, 2012.
141 The BOP will not make a motion for sentence reduction for prisoners who have detainers pending—for example, warrants
against a prisoner for pending charges, or as yet unserved but already imposed sentences from another jurisdiction.
142

No doubt wardens’ experience managing prisoners in prison and in making halfway house placements or furlough

decisions gives them some experience with judging the likelihood a prisoner might re-offend if released to the community.
But wardens do not have, as far as we know, any special expertise to determine if a dying man would be likely to commit a
crime in the few months remaining to him.

THE ANSWER IS NO

54

in such situations, and the prisoners remain under its jurisdiction. But we can find no
support for the proposition that the BOP should take public safety into account in
considering whether to move the court to release a prisoner who presents extraordinary
and compelling circumstances.
In interviews, neither BOP Director Charles E. Samuels nor Assistant Director and General
Counsel Kathleen M. Kenney could explain the statutory or legal source of the Bureau’s
asserted authority to refuse to make motions for sentence reduction to otherwise eligible
prisoners on public safety grounds.143 In a written response (reproduced in the appendix)
to our question concerning the BOP’s authority to take public safety into account, the BOP
stated without elaboration that “[c]ase law and legislative history describe the Director’s
discretion to determine whether extraordinary and compelling reasons exist to warrant a
reduction in sentence.”144 The legislative history is in fact silent on whether the BOP should
be assessing public safety, and the case law simply acknowledges the BOP’s general
discretion in compassionate release decisions and does not address whether the BOP
should base its decisions on public safety. The BOP also pointed us to the Hawk Memo,
but while that document asserts public safety as a factor for the Bureau to consider, it
does not explain the source of the Bureau’s authority to do so.
Tellingly, the Hawk Memo, which describes a set of public safety-related considerations for
wardens to evaluate, includes not only factors that were committed by statute to the
courts, but ones that the court is already aware of and thus hardly needs the BOP to
evaluate and pass on. The sentencing court considering a compassionate release motion
would already be well aware of, and better able to evaluate, the impact of the nature and
circumstances of the offense; criminal and personal history and characteristics of the
prisoner; the danger, if any, the prisoner poses to the public if released; and the length of
the prisoner’s sentence and amount of time left to serve. The BOP has no special
competence to evaluate such factors in lieu of the court. The only public safety information
the BOP might be able to add to the picture would be about the prisoner’s conduct post143 Human Rights Watch interview with Charles E. Samuels, Director, and Kathleen M. Kenney, Assistant Director and General
Counsel, Bureau of Prisons, Washington, DC, May 31, 2012.
144

Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012. BOP General Counsel

Kathleen Kenney also responded to questions Human Rights Watch and Families Against Mandatory Minimums submitted to
the deputy attorney general concerning the source of the BOP’s asserted authority to take public safety into consideration.
In her response, she simply cites “statute, BOP regulation and BOP policy” as authority for the Bureau reduction in sentence
program.

55

NOVEMBER 2012

sentencing. While the memo commends the public safety considerations to the wardens’
“correctional judgment,” we are hard pressed to see how wardens’ judgment about such
matters could ever supplant that of the sentencing judge.
It is significant that in the compassionate release statute, 18 U.S.C. section 3582(c)(1)(a)(i),
Congress did not direct the BOP to take into consideration public safety (or any other
criminal justice factors) before making a motion for sentence reduction. This silence
contrasts notably with another safety valve provision, 18 U.S.C. section 3582(c)(1)(A) (ii),
which permits the court to reduce the sentence of certain elderly offenders sentenced to
life for serious violent felonies “when a determination has been made by the Director of
the Bureau of Prisons that the defendant is not a danger to the safety of any other person
or the community.” This “lifer” safety valve was added to section 3582 in 1994. According
to a longstanding maxim of statutory interpretation, expressio unius est exclusio alterius,
the expression of one thing is the exclusion of another. “Where Congress includes
particular language in one section of a statute but omits it in another…, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or
exclusion.”145 The express direction to the BOP that it consider public safety before moving
the court to reduce a life sentence for certain prisoners, and the lack of any direction to
make a public safety determination when considering moving the court to reduce a
sentence for compassionate release, strongly implies that Congress did not intend the BOP
to rule on public safety in the latter case. This presumption is strengthened because the
compassionate release provision had been in place for 10 years before the lifer safety
valve was added in 1994. This likely means Congress intentionally added the BOP public
safety determination precisely because Congress believed the Bureau was not expected to
make such determinations with respect to compassionate release, but it was expected to
do so in the lifer cases.

Calculating Public Safety
Former wardens acknowledged to us that predictions of future behavior are uncertain at
best. When considering requests for compassionate release, some place heavy emphasis
on the nature of the crime that led to the prisoners’ conviction: the more serious the

145 Keene Corp. v. United States, 508 U.S. 200, 208 (1993); Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994).

THE ANSWER IS NO

56

potential new crime, the less likely support for early release. One former warden, Joe
Bogan, told us that for public safety reasons, prisoners who had been convicted of violent
or sex offenses usually would have to serve more of their sentence than non-violent
offenders before he would respond favorably to requests for compassionate release.146
On the other hand, Art Beeler, who spent 22 years as a federal warden, told us that he had
been more concerned about re-offending by prisoners who had engaged in white collar
crimes than those who engaged in violent crimes, on the theory that physically debilitated
prisoners might not be able to rob a bank but, given access to computers and telephones,
white collar criminals could still engage in fraud.147 He also pointed out there are no
guarantees regarding future human behavior: deciding whether to recommend someone
for release entails the difficult balance of being careful but not so risk averse that no case
would ever be approved.
We have reviewed dozens of memoranda to prisoners from BOP wardens, regional
directors, and the BOP Central Office denying, on public safety grounds, prisoner requests
for compassionate release or appeals of the wardens’ denials. Based on that review, it
appears that all too often, if a prisoner is considered to have the physical or mental ability
to re-offend, the BOP will conclude that he poses a public safety risk. The physical and
mental capability to commit a crime is conflated with the likelihood of doing so.
As the memoranda included in the appendix exemplify, the BOP usually does not explain
which specific aspects of the prisoner’s history or circumstances lead officials to conclude
that he or she remains dangerous. There is no analysis, for example, of whether the
prisoner has shown remorse or understanding of the impact of his conduct on victims, a
factor that is frequently relevant in sentencing, and there is no discussion of whether
prisoners with similar profiles have proven likely to re-offend following early release.
For example, the BOP denied Carl Meecham’s (pseudonym) effort to obtain compassionate
release on public safety grounds.148 In 2006, Meecham was sentenced to 108 months in
prison after being convicted of conspiracy to commit mail and wire fraud in connection
146 Human Rights Watch telephone interview with Joe Bogan, July 15, 2012.
147 Human Rights Watch telephone interview with Art Beeler, July 15, 2012.

148 This discussion of the efforts of Carl Meecham (pseudonym) to obtain compassionate release is based on review of BOP

documents and material provided to Human Rights Watch by Meecham’s lawyer (on file at Human Rights Watch).

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with a fraudulent telemarketing scheme. He had no prior convictions. The judge explained
that she sentenced Meecham to a sentence below the minimum range because of “the
nature and circumstances of the offense and the history and characteristics of the
defendant” and because at Meecham’s age (he was 65), a sentence “under the guideline
range would leave him very little, if any, life to live upon release from imprisonment.”149
In June 2011, after serving more than half of his sentence, Meecham was diagnosed with
stage IV lung cancer and given a prognosis of less than a year to live. The warden at the
Federal Medical Facility at Butner, where he had been sent to receive palliative
chemotherapy, denied his request for compassionate release, and the denial was upheld
in the administrative appeal process. The memorandum to Meecham from the warden
described how he and his partner had defrauded upwards of “1,000 U.S. citizens from 49
states of more than fourteen million dollars” by getting them to invest in a non-existent
business. The warden opposed Meecham’s request for compassionate release to die at
home because of the severity of his crime and “the possibility of your ability to reoffend.”150 The warden then denied Meecham’s administrative appeal after considering
“the likelihood of your re-offending and assessing potential risks to the public.”151 In
neither memorandum did the warden provide any analysis of why she thought Meecham
might re-offend. She did not, for example, discuss whether he showed remorse for his
crimes or understood the full impact of what he had done, or whether, on the contrary, she
had reason to believe he was contemplating committing more crimes if released.
Although courts almost never grant compassionate release without a motion by the BOP
(see Section VII, below), in November 2011, the federal judge who had originally sentenced
Meecham granted him compassionate release after a petition from his lawyer. In notable
contrast to the public safety concerns of the warden, the judge wrote,
But where the sentencing factors drove my decision in 2006 that Mr.
[Meecham], who was in his sixties when he was sentenced, not die in
prison, the sentencing factors operate again to support his petition for
149 United States of America v. [Carl Meecham (pseudonym)], Judgment in a Criminal Case, United States District Court, New
Jersey, June 28, 2006.

150 Memorandum from Sara M. Revell, Complex Warden, to Carl Meecham (pseudonym), Re: Reduction in Sentence, October
6, 2011.
151 Memorandum from Sara M. Revell, Complex Warden, to Carl Meecham (pseudonym), Re: Reduction in Sentence,
December 2, 2011.

THE ANSWER IS NO

58

release to his family now. Specifically, the public will not be harmed; at this
sentencing, Mr. [Meecham] demonstrated an understanding—for perhaps
the first time—of the full impact of his actions, and it is inconceivable that
he would desire to cause further harm. And the nature of his offenses,
which call out for a serious sentence, should not trump the Court’s express
intention that he outlive his time in custody.152
Even if the BOP had concerns regarding a prisoner’s potential public safety risk, it could
make a motion for sentence reduction and urge the court to impose specific terms of
supervision that would ameliorate the risk. The courts can and do build into their release
orders specific conditions to further protect the public, in addition to more generic
supervision requirements. For example, in Charles Costanzo’s case (discussed in Section
IV, above), the court’s release order instructed Costanzo to have no contact with the
government witnesses or the co-defendants in his case.153

Retribution, Sufficiency of Punishment, Nature of the Crime, Victims
The BOP takes into consideration a range of criminal justice factors besides the possibility
of re-offending when making compassionate release decisions. These subjective, valueladen factors are often hidden under vague and conclusory references to public safety.
Wardens consider such things as the nature of the crime, whether the prisoner has been
“punished enough” in light of that crime, and what victims or the general public might
think if the prisoner were released early.
In Carl Meecham’s (pseudonym) case, noted above, the warden commented at length in
the memorandum denying his request on the great harm he had caused the victims of his
fraudulent scheme. The harm seemed to weigh heavily in her decision. Former Warden Joe
Bogan told us that retributive considerations clearly factored into his decision-making.154
He explained that, while he received no guidance from his superiors about how to
approach the question of whether someone had served long enough, it was something he
learned to judge through experience. Compassionate release, in his view, should not be
granted if it depreciated the seriousness of the offense. If a prisoner serving a twenty-year
152 United States v. [Carl Meecham (pseudonym)], No. 03-cr-120-02, NJDC (Nov. 18, 2011), “Order for Release,” p. 2.

153 Order to Reduce Imprisonment to Time Served, United States v. Costanzo, C.R. 08-010, M.D. PA. (filed July 23, 2012).
154 Human Rights Watch telephone interview with Joe Bogan, July 15, 2012.

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sentence became seriously ill after only two years, Bogan was less likely to recommend
compassionate release than if the prisoner had already served a great proportion of his
sentence. Indeed, he characterized the early release stance of the BOP as “compassionate
[if the prisoner] has done enough time.”155 Another former warden, Art Beeler, also
struggled with the time a person had served. He told us, “I tried not to use it as a [criterion],
but it was in my mind how long a person had served on his sentence.”156
A warden’s subjective response to a crime can also influence the outcome. Art Beeler told
us that if a prisoner had committed a particularly terrible crime, he was less likely to
recommend him for compassionate release.157 Joe Bogan also acknowledged to us that
there were some prisoners he would never recommend for compassionate release because
of the heinousness of their crimes. He specifically cited sex offenders.158

Caspar McDonald
Caspar McDonald (pseudonym), 73 years old, has served ten years of a twentyyear federal sentence for sexually touching the child of a neighbor, taking
pictures of her genitalia, and possession of child pornography.159 He has no
prior criminal history. Because of severe spinal stenosis, McDonald is
permanently paralyzed below his upper chest and is unable to use his arms or
legs. He also has hypertension, anemia, diabetes, and hypothyroidism. He
cannot bathe, dress, go to the toilet, or move himself without assistance, and
because of pain, he cannot sit up or be out of bed for more than brief periods
of time. He will remain bedridden and require skilled nursing care for the rest
of his life. To call a nurse, he blows into a special tube.

155 Ibid.

156 Human Rights Watch telephone interview with Art Beeler, July 15, 2012.
157 Ibid.

158 Human Right Watch telephone interview with Joe Bogan, July 15, 2012.

159 Human Rights Watch interview with Caspar McDonald (pseudonym), FMC Butner, North Carolina, July 30, 2012.

Information on McDonald’s case is also based on BOP documents addressing his request for compassionate release (on file
at Human Rights Watch).

THE ANSWER IS NO

60

The BOP acknowledged that his medical condition was “serious” and made
him “an appropriate candidate for reduction in sentence consideration.”160
Nevertheless, in October 2011, Warden Sara Revell concurred with the
recommendation of the Reduction in Sentence Committee that his request
should be denied “due to the nature of your offense and the length of
sentence imposed.”161 When McDonald appealed the denial, Warden Revell
denied the appeal, stating, “[a]n objective of the reduction in sentence
program is each request will be carefully reviewed to protect the public from
undue risk. Due to the seriousness of your instant offense, you are still
considered a threat to society.”162
Human Rights Watch met with Warden Revell and asked her why she felt
McDonald could be considered a threat to public safety were he released,
given his physical condition.163 Warden Revell acknowledged McDonald was
physically incapable of re-offending. Yet she said that it was her responsibility
to “put myself in the victim’s role” and to think “how the victim or her family
would feel” were McDonald released home before the end of his sentence. She
also said that as a warden, she has discretion to consider whether the
prisoner’s release would lessen the seriousness of his offense.164

Fear of Bad Publicity
BOP staff members may consider the possibility of bad publicity or adverse public
response when making compassionate release decisions in particular cases.165 As a former
160 Memorandum from Sara M. Revell, Complex Warden, FMC Butner, to Caspar McDonald (pseudonym), “Reduction in
Sentence,” October 4, 2011.
161

Ibid.

162 Request for Administrative Remedy, Part B. –n Response, Admin Remedy Number 685439-F1, from

Complex Warden, FMC Butner, May 2, 2012.

Sara M. Revell,

163 Human Rights Watch interview with Sarah Revell, Complex Warden, FMC Butner, North Carolina, July 30, 2012.
164 Ibid.

165 Confronting a request for compassionate release from a prisoner convicted of methamphetamine distribution

who was
dying of cardiomyopathy that he had developed as a result of his drug habit, the warden hesitated because he wondered
how it would look to the public to give the prisoner “preferential treatment” since he had harmed himself. In the end,
however, he did recommend release, it was approved, and the prisoner died at home about three months after release.
Human Rights Watch telephone interview with a former warden who requested anonymity, July 17, 2012.

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warden framed it, “Compassion for a murderer? We knew we had a responsibility not to
have a hue and cry from the public.”166 Former Warden Joe Bogan emphasized that the BOP
wanted to avoid bad press and “getting into trouble” over compassionate release
decisions. He explained that the Bureau “takes pride in not causing problems” for the DOJ
with its compassionate release decisions.167
This concern can prompt a conservative approach to requests for early release
consideration: the BOP does not want to confront an uproar in the press or political
blowback from making a motion for the early release of someone who then commits a
horrifying crime. Consideration of public response may also color refusals to grant
requests for compassionate release when the prisoners have committed particularly grave
or notorious crimes, even if there is little or no chance of their re-offending.168

166 Ibid.

167 Human Rights Watch telephone interview with Joe Bogan, July 15, 2012.

168 However, we note that Warden Revell told us that “she could care less” about negative political responses to her
decisions. She insisted she made her decisions based on the merits of each case as she saw it. Human Rights Watch
interview with Sara Revell, July 30, 2012.

THE ANSWER IS NO

62

V. Administrative Remedy
A prisoner may appeal denials of his request for a motion to reduce his sentence made by
the warden or the regional director through the regular administrative remedy process.169
The administrative remedy process requires an appeal first to the warden who denied the
prisoner’s request; if the warden rejects the administrative remedy, the prisoner may
appeal to the regional office; if rejected at the regional office, the prisoner may appeal to
the BOP Central Office. No appeals are possible to rejections by the Central Office.170
We do not know what proportion of prisoners file an appeal when their requests for
compassionate release are denied by the warden. Our sense is that many do not. Some
may be too sick to have the physical or emotional energy or even capacity to pursue an
appeal. Some prisoners told us they were not aware they could appeal denials of their
requests for compassionate release. Others suggested they did not bother because they
thought it would be futile.
The belief that appeals are futile is borne out by the statistics. In 2011, there were 41
administrative remedies filed with wardens who had denied prisoner requests for
compassionate release consideration; only one was granted. Out of the 40 prisoners
whose administrative remedies were denied, 24 then appealed the wardens’ denials to the
regional directors, who granted one. All of the prisoners who were denied at the regional
director level then appealed to the Central Office, which granted none of them, although it
returned one case to a warden for reconsideration.171 Between January 1, 2009 and August
26, 2012, 127 administrative remedies were appealed to the Central Office; 55 were
rejected on procedural grounds (such as not being filed in a timely manner), and none
were granted.172

169 Bureau of Prison procedures are at 28 C.F.R. 542, subpart B.

170 28 C.F.R. section 571.63 (d) states, “Because a denial by the General Counsel or Director, Bureau of Prisons, constitutes a
final administrative decision, an inmate may not appeal the denial through the Administrative Remedy Procedure.”

171 Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012. We do not know the ultimate
outcome of the appeal that was returned to the warden for reconsideration.

172 Data provided by James C. Wills, Assistant General Counsel, Bureau of Prisons, in email communications to Human Rights
Watch and Families Against Mandatory Minimums, September 26, 2012 and October 10, 2012 (on file at Human Rights Watch
and Families Against Mandatory Minimums).

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The BOP follows the same timetables in cases where compassionate release is being
sought as in any other appeal. From the time a request is originally filed until a final
decision by the Central Office can take 160 days.173 There is no provision for expediting the
appeals in compassionate release, even when the prisoner has only a few months or less
to live and time is of the essence.
The BOP also insists on observance of the smallest bureaucratic requirements, even when
dying prisoners submit their administrative appeals. In one recent case, for example, a
prisoner with less than six months to live failed to use the correct form when he appealed
the warden’s denial. The warden did not mention the improper form but denied his appeal,
and the prisoner then appealed to the regional director. After a month, the regional
director responded to the prisoner that he had used the wrong form to file his appeal with
the warden and that he had to start the appeal process again with the warden, using the
right form.174 In another case, an appeal of a denial was rejected by the Central Office
because the prisoner used two pages, and the limit is one page, one-sided.175
The responses to prisoners who appeal denials are often as cursory and one-dimensional
as the denial of the prisoners’ original requests. The official justification for a denial can
be as short and un-illuminating as “the nature of the offense.” It can also be outright
incorrect, as in one case when a warden mixed up the role of the prisoner with that of his
co-defendant.176 Wardens’ adverse decisions are almost never overturned, and the ability
of a prisoner, particularly one hampered by illness, to effectively challenge them is nil for
all intents and purposes.

A Fair Process?
The BOP process for decision-making in compassionate release cases contains numerous
levels of bureaucratic review, but scant guarantees of fairness. When the warden initially
considers a prisoner’s request, there is no requirement that there be a hearing or even an

173 See 28 C.F.R. 542.18 (providing that a warden’s response is to be made within 20 days of receipt of the prisoner’s appeal

and can be extended an additional 20 days; a Regional Director’s response should be made within 30 days and may be
extended by 30 days; and the Central Office’s response should be received within 40 days and may be extended by 20 days).
174 Email communication from Lynne Louise Reid, Attorney, to Human Rights Watch, April 30, 2012.

175 “Rejection notice – Administrative Remedy,” from Administrative Remedy Coordinator, Central Office, Bureau of Prisons,

to Brian Simpson (pseudonym), July 24, 2012.

176 United States v. Shemami, No 07-20160, S.D. MI (2012).

THE ANSWER IS NO

64

informal meeting or interview during which the prisoner can respond directly to questions
and concerns. As noted above, the rationale for decisions to deny requests for
compassionate release are often summary “public safety” conclusions that yield little
insight into the evidence supporting them and which therefore deny prisoners the
information necessary for them to attempt to overturn the denial.
Lack of transparency continues at the Central Office. What the US attorneys or officials in
the Office of the Deputy Attorney General tell the BOP when it consults them, and what
influence this has in a particular case, is not revealed to the prisoner. If there were a
hearing before a judge, prosecutors would have to lay out publicly any objections they
have to early release. But as long as the BOP denies the prisoner’s request, such
objections can remain private, because there is no appeal from the director’s decision and,
as discussed below, no judicial review of that decision.

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Mazen Ali Yasin
Mazen Ali Yasin (pseudonym), a naturalized US citizen born in Iraq, is a 64-yearold small-time merchant who lived in Detroit with his wife and nine children before
he began serving a 46-month sentence in March 2011 for violating the
International Emergency Economic Powers Act.177 Until January 2003, he traveled
frequently to Iraq, earning money by bringing parcels and money to the families
and friends in Iraq of Iraqi nationals in the Detroit area. He also traveled to Turkey
to purchase nuts and seeds.
The US government claimed that in December 2002, Yasin provided information to
the Iraqi Intelligence Service about Iraqis living in the United States and about US
troop activity he had witnessed while in Turkey. Yasin insists he was never a
terrorist or a spy, but that he provided information to the Iraqi intelligence agents
after they contacted him in late 2002 and threatened to prevent him from entering
the country again if he did not provide them information. None of the information
he supposedly provided to the Iraqis was alleged to have been secret or official
information; his lawyer insists it was mostly false or fantasy and harmless. Yasin
did not plead guilty to and was not sentenced for providing information to the
Iraqis, but the government’s claims were included in his presentencing report.
In 2009, Yasin pled guilty and received the lowest possible sentence under the
sentencing guidelines, given the charges against him. The sentencing judge
stated, “I don’t believe that the public needs to be protected from further crimes
of the defendant. I don’t see that he’s likely to reoffend.”178 Shortly after
sentencing, Yasin was diagnosed with stage IV metastatic thymoma. The
sentencing judge let him wait two years before entering prison so that he could
receive medical care in the community. There is no evidence that he re-offended
during this period.179

177 Human Rights Watch interview with Mazen Ali Yasin, FMC Butner, North Carolina, July 30, 2012. Our discussion of Yasin’s
case and efforts to obtain medical release also draws on email correspondence with him, conversations with his attorney,
legal pleadings, and BOP documents pertaining to his request (on file at Human Rights Watch). In addition, we spoke to the
warden at FMC Butner and his BOP physician about his case on July 30, 2012.
178 United States of America v. [Mazen Ali Yasin]; Sentencing Hearing, US District Court, Eastern District of Michigan, June 9,

2009, hearing transcript p. 17 (on file at Human Rights Watch).

179 Yasin was out on bond from the time he was arraigned until he self-surrendered to FMC Butner in March 2011.

THE ANSWER IS NO

66

In October 2011, Dr. Andre Carden, Yasin’s oncologist, estimated that Yasin had
less than six months to live and that his case was medically appropriate for
reduction in sentence consideration.180 On November 30, 2011, the Reduction in
Sentence Committee recommended to the warden a denial of Yasin’s request for a
reduction in sentence, “due to the nature of your criminal offense and your ability
to reoffend,” and the warden concurred on December 2, 2011.181 There was no
indication in the memorandum whether the Committee thought it likely that Yasin
would want to re-offend or what sort of offense he could commit.182
Yasin sought an administrative remedy, but his appeal was denied by the warden
on May 3, 2012. On June 8, 2012, Yasin filed a petition for writ of habeas corpus in
the US District Court, Eastern District of North Carolina, seeking a judicial
determination of whether the BOP had violated his right to due process and the
separation of powers because it made decisions based on matters reserved for the
judiciary.
During a meeting with Warden Sara Revell, Human Rights Watch asked her why
she denied Yasin’s request for compassionate release. We noted that it was
unlikely he could or would provide information to the Iraqi Intelligence Services
again, given that neither the government of Saddam Hussein nor his intelligence
services existed any more. Moreover, Yasin had relinquished his passport and was
in no physical shape to travel in any event. Warden Revell told us that Yasin’s
actions in providing information to the Iraqi government were so serious that he
did not warrant a reduction in sentence. She said she gave more weight to what he
had done than to the fact that he probably would not re-offend.183

180 Earlier efforts by Yasin to be considered for compassionate release failed because medical reviews indicated he seemed

to be responding positively to chemotherapy and his condition appeared stable. Response to Request for Administrative
Remedy, from Sara M. Revell, Complex Warden, FMC Butner, May3, 2012; Human Rights Watch interview with Dr. Andre
Carden, FMC Butner, North Carolina, July 30, 2012.

181 Reduction in Sentence Memorandum from Sara M. Revell, Complex Warden, to Mazen Ali Yasin (pseudonym), November

30, 2011 (on file at Human Rights Watch).

182 One of Yasin’s lawyers, Harold

Gurewitz, once ran into his former prosecutor, Barbara McQuade. According to Guerwitz,
when he told McQuade, now US Attorney, that Yasin’s motion for compassionate release had been denied because of the
possibility he might re-offend, McQuade said “that’s ridiculous.” Human Rights Watch telephone interview with Harold
Gurewitz, June 4, 2012.
183 Human Rights Watch interview with Sara M. Revell, Complex Warden, FMC Butner, July 30, 2012.

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VI. The Lack of Judicial Review
When the Bureau of Prisons refuses to make a motion for sentence reduction, prisoners
have no recourse. The government vigorously opposes prisoners’ efforts to obtain relief in
the courts, and the courts in turn have been loath to intervene. Judicial review of a BOP
refusal to support compassionate release is almost non-existent.
Prisoners have appealed to the courts in several different ways. Some have directly asked
the sentencing court to reduce their sentence for extraordinary and compelling reasons,
notwithstanding the BOP’s refusal to bring a motion. Others have asked the federal courts
to review the Bureau’s refusal as unlawful. Still others have tried to challenge the way the
BOP arrived at its regulations and internal program statements.

Seeking Direct Release
With rare exceptions, prisoners who have filed compassionate release motions directly to
the courts have been rebuffed. The courts have accepted the government’s argument that
they lack authority to intervene because the compassionate release statute gives the BOP
sole discretion to bring them the motion for a reduction in sentence for extraordinary and
compelling circumstances. That is, Congress has not authorized prisoners to make such
motions on their own.184

Review of the Failure to Act
Federal courts are sometimes able to review the actions or failures to act of federal
agencies to determine if they are consistent with governing statutes and regulations. Some
prisoners have sought to convince courts to review the BOP’s refusal to make a
compassionate release motion, in hopes the court will find the Bureau acted unlawfully
and order it to act. The courts have almost always concluded that they have no basis for
overturning the BOP’s decision on the grounds that Congress granted the BOP complete

184 See, for example, Engle v. United States, 26 F. App’x 394, 397 (6th Cir. 2001) (district courts “lack jurisdiction to sua

sponte grant compassionate release….”); United States v. Smart, 129 F.3d 539, 541 (10th Cir. 1997); and Cruz-Pagan v.
Warden, 2012 U.S. App. LEXIS 16392, *2 (11th Cir. Aug. 7, 2012) (stating, “without a motion from the Director, a precedential
case, an authorizing statute, or an authorizing Rule granting us subject-matter jurisdiction, we cannot modify his sentence).

THE ANSWER IS NO

68

discretion to bring or not bring a motion.185 Because the Bureau has such broad discretion,
the courts have no way to intervene and, even if they did, no standards against which to
judge a refusal to make a motion.
As one court explained, “[t]he statute places no limits on the BOP’s authority to seek or not
seek a sentence reduction on behalf of a prisoner, nor does it define – or place any limits
on – ‘what extraordinary and compelling reasons’ might warrant such a reduction.”186 The
BOP’s unlimited discretion means the agency “has no duty to move for a sentence
reduction under any circumstances.”187
Only very rarely has a court ventured a deeper examination. On one occasion, a prisoner
persuaded the court to examine the BOP’s refusal to bring a motion in light of the
requirement that an agency apply—rather than disregard—the relevant statutory and
regulatory criteria.”188 Kyle Dresbach, a federal prisoner, contended that the BOP was
operating arbitrarily and unlawfully in violation of its own policies by not considering nonmedical cases for compassionate release. Dresbach had been sentenced in 2005 to 58
months imprisonment on charges related to fraud, money laundering, and tax evasion.189
He had no prior criminal history. At the time of sentencing, his wife had a mild cognitive
dysfunction that was subsequently diagnosed as Alzheimer’s. Her condition deteriorated,
and by 2010, she required a full-time caregiver. She was also no longer in a position to be
able to care for a daughter who lived at home, who had cognitive impairments and a
seizure disorder.
Although Dresbach had already served more than half his sentence, the BOP denied his
request for consideration for compassionate release so he could take care of his wife and
daughter. According to the Bureau’s national prisoner appeals administrator, “[c]learly [a]
prisoner’s family experiences anxiety, pain, and hardship when a family member is
185 See Crowe v. United States, 430 F.App’x 484, 485 (6th Cir. 2011); Turner v. United States Parole Commission, 810 F. 2d 612,
615 (7th Cir. 1987); Simmons v. Christensen, 894 F.2d 1041, 1043 (9th Cir. 1990); Fernandez v. United States, 941 F.2d 1488,
1493 (11th Cir. 1991); Taylor v. Hawk-Sawyer, 39 F. App’x 615, 615 (C.A.C.D.C. 2002).
186 Crowe v. United States, 430 Fed. App’x 484, *2-3 (6th Cir. 2011).

187 Defeo v. Lapin, No. 08 Civ. 7513, 2009 WL 1788056,(S.D.N.Y.), June 22, 2009.

188 United States v. Dresbach, 806 F. Supp. 2d 1039, 1042 (E.D. Mich., 2011) (citing Kurt Meister v. U.S. Dept. of Agriculture,
623 F.3d 363, 367 (6th Cir. 2010)).

189 Information on the case of Kyle Dresbach comes from motions and briefs submitted by Dresbach and by the government
in his case challenging BOP denial of his request for compassionate release consideration, as well as BOP documents
included as exhibits to those briefs (on file at Human Rights Watch).

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incarcerated and unavailable to assist other family members. However, family hardship is
an unfortunate consequence of incarceration and does not fall within the restricted
application of the statute.”190
After exhausting his administrative remedies, Dresbach went to court arguing that the BOP
had abused its discretion by adopting policies that foreclosed consideration of
compassionate release for prisoners who were not terminally ill or seriously debilitated.
The court brushed aside the government’s arguments that it lacked authority to hear
Dresbach’s complaint and ordered the government to provide proof that the BOP did in
fact consider non-medical cases for compassionate release. The government provided the
court with three cases in which it had considered non-medical reasons for compassionate
release, although it had denied all three. The court ordered the government to explain the
apparent conflict between the Bureau’s statements that their policy permitted
consideration of non-medical reasons and the language used in specific non-medical
cases that seem to limit compassionate release to medical cases.191 In June 2011, the
director of the BOP conducted an unprecedented de novo review of Dresbach’s case, which
also concluded with a denial. The director noted that,
[t]hese decisions are always difficult. Dresbach’s family circumstances are
indeed serious, and his imprisonment is a hardship for his family…. In my
experience, it is not uncommon that families in the community face similar
issues.… Therefore, while I find Dresbach’s family situation most
unfortunate, and I can empathize with his circumstances, I cannot conclude
that his circumstances are so extraordinary and compelling as to warrant a
RIS.192
The director thought Dresbach’s presumed eligibility for home confinement in six months—
in February of 2012—militated against granting compassionate release, rather than
indicating that there was little penological purpose in keeping him incarcerated for that
short period. The court was satisfied that the BOP had shown it was willing to consider

190 Administrative Remedy Number 559947-A2, signed by Harrell Watts, Administrator, National Inmate Appeals, Bureau of

Prisons, March 29, 2010 (on file at Human Rights Watch).

191 United States v. Dresbach, 806 F. Supp. 2d 1039, 1042 (E.D. Mich., 2011).
192 Denial letter quoted in United States v. Dresbach, p. 1042.

THE ANSWER IS NO

70

non-medical situations and denied Dresbach’s motion for a reduction in sentence.193
Dresbach finished serving his sentence and was released from prison on August 8, 2012.
In another case, a court concluded that the BOP reasonably interpreted the compassionate
release statute to apply only to prisoners with serious medical conditions: “Where, as here,
Congress has enacted a law that does not answer the precise question at issue, all we
must decide is whether the Bureau … has filled the statutory gap in a way that is
reasonable in light of the legislature’s revealed design.”194
Courts have also been asked to look to the BOP’s regulations, which were written by the
Bureau, to see if the BOP refusals violate its own rules. But those rules offer no help for
prisoners. One district court neatly summed it up: “In § 571.63, the BOP does not give any
requirements or procedures that the BOP must follow in determining whether to deny a
request for reduction of sentence, leaving it unlimited discretion.”195 In other words,
because the BOP has given itself unlimited discretion, it is free to exercise that discretion
without fear that a prisoner will be able to succeed in challenging adverse decisions in
federal court.

Challenging the Rules
Still other prisoners have sought to challenge in court the BOP’s “unwritten policy” to
restrict motions for sentence reduction to dire medical cases as a “rule that should have
been published publicly for notice and comment under the Administrative Procedure Act
(APA).”196 The APA requires that rules that affect rights and obligations must be published
for public comment before being adopted. So-called “interpretive rules,” on the other hand,
need not be. The courts have ruled against prisoners in these cases, agreeing with the
government that the BOP’s policy is a legitimate interpretation of the compassionate
release statute not subject to APA requirements.197

193 Ibid.

194 United States v. Maldonado, 138 F. Supp.2d 328, 333 (E.D.N.Y. 2001).

195 United States v. [Mazen Ali Yasin (pseudonym)], No 07-20160, S.D. MI, “Opinion and Order Denying Defendant’s Motion

for Reduction of Sentence,” July 2, 2012.

196 Williams v. Van Buren, 117 Fed. Appx. 985, 986 (Fifth Cir. 2004).

197 Williams v. Van Buren, p. 987; see also Hubbs v. Dewalt, 2006 U.S. Dist. LEXIS 27950, *10 (E.D. KY, May 8, 2006).

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New Challenges
Recently, some prisoners have brought cases arguing that the BOP has unconstitutionally
undermined the statutory scheme Congress laid out by usurping judicial authority when it
denied their requests for the Bureau to file a compassionate release motion.

Philip Wayne Smith
On November 13, 2002, Philip Wayne Smith, age 33, pleaded guilty to possession
with intent to distribute of a half-ounce of methamphetamine.198 Because of his
prior record of drug offenses, he was sentenced as a career offender to 156
months of imprisonment, to be followed by three years supervised release.
After serving nine years, more than half of his prison sentence and three years
short of his projected release date of July 20, 2014, assuming good time, Smith
was diagnosed in late 2011 with acute myelogenous leukemia (AML), a terminal
illness. The BOP denied his first request for consideration for compassionate
release, after reviewing his medical conditions and criminal history, concluding
that “the most appropriate course of action” was for him to proceed with a bone
marrow transplant when the hospital deemed it appropriate and assuming the
Central Office approves the transplant.199
By early 2012, according to Smith’s physician, he had only a few weeks to live. In
response to his second request for consideration for compassionate release, the
Bioethics Committee at his facility met on February 2, 2012 to again review Smith’s
case. The committee concluded he was not appropriate for compassionate
release, stating that “while your medical condition is very poor, your criminal
history outweighs your medical condition.”200 The warden of Federal Medical
Center Lexington concurred with this denial.201

198 Information on Phillip Wayne Smith’s case comes from court documents he and the government filed in court in

connection with Smith’s effort to obtain a sentence reduction, United States of America v. Phillip Wayne Smith, CR. 02-30045AA, US District Court, District of Oregon, Emergency Motion to Reduce Sentence and Provide Other Equitable Relief Pursuant
to 28 U.S.C. section 2255 5, February 23, 2012.
199 Response to Request for Reduction in Sentence Consideration, to Phillip Smith, October 28, 2011 (on file at Human Rights
Watch).

200 Response to Request for Reduction in Sentence Consideration, to Philip Smith, February 9, 2012 (on file at Human Rights
Watch).

THE ANSWER IS NO

72

On February 23, 2012, Smith filed a lawsuit in federal district court in Oregon,
arguing that the BOP was violating the compassionate release statute and due
process by failing to apply the compassionate release guidelines established by
the US Sentencing Commission and that the Bureau’s refusal to refer his case to
the sentencing court violated the separation of powers by usurping the judicial
role in sentencing. He argued that the BOP had unlawfully frustrated the court’s
well-grounded expectation at the time of sentencing that, should Smith develop
extraordinary and compelling circumstances such as those laid out in the
Sentencing Commission’s Policy Statement on compassionate release, the BOP
would ask the court to exercise its authority to grant early release. The BOP’s
refusal to do so, its “defiance of the proper Executive Branch role in executing a
sentence,” violated constitutional separation of powers, in part “by usurping the
judicial role in sentencing. Rather than serving as a gate-keeper, giving the Court
notice when ‘extraordinary and compelling reasons’ exist, the BOP only files a
motion when it thinks it should be granted.”202
The court never ruled on these legal claims, because after two weeks of litigation
primarily focused on the authority of the court to entertain Smith’s motion, the
BOP reversed course. On March 12, 2012, it made a motion to reduce Smith’s term
of imprisonment to time served. The court immediately signed the order, and
Smith died at his brother’s home on April 9, 2012.203
A video about compassionate release by the Oregon public defender’s office,
which represented Smith, includes an interview with Smith and his family and is
available online.204

201

Letter from Bureau of Prisons to US District Court, District of Oregon, March 1, 2012, quoted in United States of America v.
Phillip Wayne Smith, C.R. No. 02-33045-AA, Supplement to Emergency Motion to Reduce Sentence and For Other Equitable
Relief, filed March 5, 2012.
202
203

United States of America v. Phillip Wayne Smith, CR. 02-30045-AA.

United States of America v. Phillip Wayne Smith, CR. 02-30045-AA, US District Court, District of Oregon, Government’s
Motion to Reduce Term of Imprisonment to Time Served, March 12, 2012.

204

“The Broken Promise of Compassionate Release,” video, July 9, 2012, http://www.youtube.com/watch?v=-d-6qfgdW2c
(accessed November 5, 2012). See also Ninth Circuit Blog, “Putting the Compassion into ‘Compassionate Release’ with a
Little Help from Setser,” March 28, 2012, http://circuit9.blogspot.com/2012/03/putting-compassion-intocompassionate.html (accessed September 22, 2012).

73

NOVEMBER 2012

On rare occasions, a court has granted relief to prisoners seeking compassionate release,
essentially by ignoring the legal obstacles on which other prisoners’ cases have
foundered.205 Prisoners should not have to find undaunted and creative lawyers and
judges to obtain meaningful judicial review of their cases. Either the BOP should function
as Congress intended—that is, as a screen, not as an intransigent gatekeeper—or Congress
should grant prisoners the right to make motions directly in court to seek judicial review of
the BOP’s actions.

205 See United States v. Lagonia, 2012 U.S. Dist. LEXIS 21613 *6-7 (D. N.J., Feb. 17, 2012) (discussing and distinguishing
grants in U.S. v. Sims, No. CR-486-80 (S.D. Ga., June 28, 2011), and U.S. v. Meyers, No. 03-cr- 120-02 (D.N.J., November 18,
2011)); see also U.S. v. Coster, Order and Opinion, No. 90-cr-276 (N.D. Ohio, October 26, 2006) (granting prisoner’s motion
under Fed. R. Civ. P. 60(b)(6) after the government argued the prisoner had failed to exhaust his administrative remedies, but
did not challenge the court’s jurisdiction. The court found that exhaustion would have been futile in light of his impending
death and the lengthy administrative remedy process, and ordered his release.).

THE ANSWER IS NO

74

VII. Human Rights and Compassionate Release
Human rights treaties to which the United States is a party contain no express requirement
that compassionate release be available to prisoners. Nevertheless, human rights
principles codified in those treaties—for example, that all prisoners be treated with respect
for their human dignity and humanity, and that no one should be subjected to cruel,
inhuman, or degrading treatment206—support fair and robust programs of compassionate
release. Unfortunately, compassionate release within the Bureau of Prisons appears to
reflect a greater concern with limiting the number of prisoners who receive a sentence
reduction than with trying to secure such release when changed circumstances render
continued imprisonment senseless, incompatible with human dignity, or cruel.
Responsibility also lies with the Department of Justice, which has failed to ensure that the
BOP’s application of its statutory authority to move for sentence reductions and its
compassionate release decision-making process are consistent with human rights.
Within a human rights framework, imprisonment is an acceptable sanction for crime,
assuming that it is imposed through proper legal procedures and that its duration is not
disproportionately severe relative to the crime and the legitimate purposes to be furthered
by punishment. While a prison term may have been proportionate at the time imposed,
circumstances can arise that change the calculus against continued incarceration and in
favor of some form of early release, even if under ongoing supervision.207 To be consistent
with human rights, a decision regarding whether a prisoner should remain confined
despite, for example, terminal illness or serious incapacitation, should include careful
consideration of whether continued imprisonment would be inhumane, degrading, or
otherwise inconsistent with human dignity.208 Key to that analysis is what, if any,

206 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N.

GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the
United States on June 8, 1992.
207

For an extended discussion of how age and incapacity affect the purposes of punishment that might be served by
continued incarceration, as well as the relevant human rights jurisprudence, see Human Rights Watch, Old Behind Bars: The
Aging Prison Population in the United States, January 28, 2012, http://www.hrw.org/reports/2012/01/27/old-behind-bars-0.

208 If a prison system were not able to provide appropriate conditions of confinement and medical care for someone with a
terminal or otherwise serious illness or disability, that would also argue for the necessity of release to satisfy human rights
requirements. In Mouisel v. France, the European Court of Human Rights held that the continued incarceration of a sentenced
prisoner who was seriously ill and whose medical needs could not be dealt with adequately in prison amounted to inhuman

75

NOVEMBER 2012

legitimate purposes of punishment are furthered by continued incarceration. Decisionmakers must consider, for example, whether continued incarceration meaningfully furthers
the goals of retribution, incapacitation, rehabilitation, and deterrence.
We do not know, of course, whether federal courts would have granted a sentence
reduction to any of the prisoners whose cases are noted in this report. But we are
confident the courts would justify a decision one way or another with more careful
deliberation and explanation than the summary stance taken by the BOP in its denials.
Under the compassionate release statute, federal judges are obliged to review and weigh
various factors in deciding whether to re-sentence a prisoner to time served because of
“extraordinary and compelling” reasons. They must assess not just the changed
circumstances, but also the considerations enumerated in 18 U.S.C. section 3553(a)
governing the imposition of a sentence—including the nature and circumstances of the
offense, the history and characteristics of the prisoner, and the extent to which early
release would be consistent with the requirement that sentences reflect the seriousness of
the offense, provide just punishment, and protect the public. The courts are also mindful
that a sentence should be sufficient but not greater than necessary to meet those needs.
By placing the decision of whether a prisoner should be granted compassionate release in
the hands of federal judges, Congress satisfied the human rights precept that deprivations
of liberty in the criminal justice context be determined by competent, independent, and
impartial tribunals following procedures that provide basic guarantees of fairness and due
process.209
Article 14 of the International Covenant on Civil and Political Rights (ICCPR) establishes the
basic procedural requirements for criminal proceedings, including the requirement of a fair
and public hearing by a competent, independent, and impartial tribunal established by
law.210 As international human rights expert Manfred Nowak has stated, “The primary
institutional guarantee of Art. 14 is that rights and obligations in civil suits or criminal
charges are not to be heard and decided by political institutions or by administrative

or degrading treatment. Mouisel v. France, European Court of Human Rights, Judgment, November 14, 2002,
www.univie.ac.at/bimtor/dateien/ecthr_2003_mouisel_vs_france (accessed November 9, 2012).
209

ICCPR, art. 14.

210 Ibid.

THE ANSWER IS NO

76

authorities subject to directives; rather this is to be accomplished by a competent,
independent and impartial tribunal established by law.”211
We are not aware of any international treaty bodies or mechanisms that have considered
whether—and if so, how—the requirements of article 14 apply to processes by which
compassionate release or other re-sentencing decisions are made.212 Nevertheless, we
think its purpose and logic are as applicable to re-sentencing as to the imposition of the
original sentence, because ongoing restrictions on the right to liberty are at stake213
The relevant principles have been applied in a number of European cases, which suggest
that “in cases where the grounds justifying the person’s deprivation of liberty are
susceptible to change with the passage of time, the possibility of recourse to a body
satisfying the requirements of article 5, section 4 of the Convention is required.”214 The key
consideration is whether the administrative entity making decisions that affect sentencing
is impartial as well as independent from the executive and the parties to the case.215 In a
case questioning whether the English parole board satisfied these criteria, the European
211 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Germany: N.P. Engel,

1993), p. 244.

212 The UN Human Rights Committee has addressed the ability of a parole board to “act in judicial fashion as a ‘court’ and

determine the lawfulness of continued detention under Article 9, paragraph 4 of the Covenant,” in Rameka v. New Zealand.
The Committee noted there was no evidence that the New Zealand parole board was “insufficiently independent, impartial or
deficient in procedure for these purposes. The Committee notes, moreover, that the Parole Board’s decision is subject to
judicial review….” Rameka et al. v. New Zealand, UN Human Rights Committee, Communication No. 1090/2002, U.N. Doc.
CCPR/C/79/D/1090/2002, December 15, 2003, http://www.justice.govt.nz/publications/publicationsarchived/2002/response-to-the-views-of-the-human-rights-committee-under-the-optional-protocol-to-the-internationalconvenant-on-civil-and-political-rights-by-messrs-rameka-harris-and-tarawa-communication-no.-10902002/documents/communication-un.pdf (accessed November 9, 2012).

213 The UN Human Rights Committee has noted that article 14 “aims at ensuring the proper administration of justice” and has
suggested it applies to the determination of sanctions that, “regardless of their qualification in domestic law, must be
regarded as penal because of their purpose, charter or severity.” UN Human Rights Committee, General Comment No. 32, Art.
14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007),
http://www1.umn.edu/humanrts/gencomm/hrcom32.html (accessed November 9, 2012), pp. 1 and 3.

214Stafford v. United Kingdom, European Court of Human Rights, Application no. 46295/99, Judgment, April 24, 2002, par. 82.
Article 5 of the European Convention on Human Rights, a regional human rights treaty, essentially mirrors article 14 of the
ICCPR, setting out basic due process requirements for criminal proceedings.

215 A series of cases brought before the European Court of Human Rights illuminate the human rights requirement that
competent, objective, and independent courts or administrative entities make decisions regarding ongoing detention,
whether because the grounds justifying a person’s deprivation of liberty have changed such that release is warranted or in
cases in which after serving a fixed term, an individual remains in detention because of the government’s decision that he is
not sufficiently rehabilitated or remains dangerous. See Stafford v. United Kingdom, European Court of Human Rights, April
24, 2002; Kafkaris v. Cyprus, European Court of Human Rights, Application no. 21906/04, Judgment, February 12, 2008;
Weeks v. United Kingdom, European Court of Human Rights, 10 EHRR 293, Judgment, March 2, 1987; Waite v. United Kingdom,
European Court of Human Rights, Application no.53236/99, Judgment, December 10, 2002; and Van Droogenbroek v.
Belgium, European Court of Human Rights, Application no. 7906/77, Judgment, June 24, 1982.

77

NOVEMBER 2012

Court of Human Rights noted that “the functions of the Board do not bring it into contact
with officials of the prisons or of the Home Office in such a way as to identify it with the
administration of the prison or of the Home Office.”216 The BOP is the agency charged with
administration of prisons in the United States and is a part of the Department of Justice of
the federal government, and it would not be able to demonstrate an impartial and
independent profile from the executive with regard to its compassionate release decisions.
The compassionate release procedures followed by the BOP also lack important
guarantees of fairness and protections against arbitrariness. The European Court of Human
Rights has concluded in the context of a case involving the Parole Board in England
recalling a convict to prison,
In matters of such crucial importance as the deprivation of liberty and
where questions arise involving, for example, an assessment of the
applicant’s character or mental state, the Court’s case-law indicates that it
may be essential to the fairness of the proceedings that the applicant be
present at an oral hearing. In such a case as the present, where [the
applicant’s characteristics] are of importance in deciding on his
dangerousness, Article 5 §4 requires an oral hearing in the context of an
adversarial procedure involving legal representation and the possibility of
calling and questioning witnesses.217
In contrast, under the BOP’s procedures, the prisoner seeking to have his sentence
reduced may make a request, but there are no hearings or even interviews at which he can
present his reasons and respond to concerns that might militate against release.
Subsequent review of the warden’s decision to deny a request is perfunctory—with a
decision to deny almost always upheld. The BOP has failed to provide prisoners with clear
guidelines regarding the criteria it uses or the availability of appeal, and there is little
transparency: the Bureau may have information from the DOJ concerning the prisoner’s
case which is not shared with the prisoner. In short, the process lacks the basic
guarantees of procedural and substantive fairness that should be present when a matter
as important as individual liberty is at stake.
216 Weeks v. United Kingdom, European Court of Human Rights, March 2, 1987, para. 62.
217

Waite v. United Kingdom, European Court of Human Rights, December 10, 2002, para. 59.

THE ANSWER IS NO

78

If the BOP were simply advising a sentencing court as to its views regarding
compassionate release, or if prisoners could seek judicial review of its decisions, its lack
of independence and inadequate procedural guarantees would be of less concern from a
human rights perspective. But the Bureau’s refusal to grant a prisoner’s request that it
submit a motion to the courts for the prisoner’s sentence reduction is not ordinarily
reviewable by a court or any other impartial, independent body.
To satisfy human rights requirements, prisoners should have access to judicial review or
review by a similarly independent, objective tribunal that applies basic due process
requirements to decisions regarding the lawfulness of their ongoing detention. The lack of
access to the courts deprives prisoners of a remedy against arbitrary, irrational, or even
unlawful BOP decisions. To some extent, of course, this is a defect arising from the statute
itself, which conditions the ability of the courts to consider compassionate release
requests on a motion by the BOP. But this defect is aggravated because the Bureau has
interpreted its authority so broadly as to render decisions on the “merits,” as opposed to
simply performing a ministerial screening function.

79

NOVEMBER 2012

Acknowledgments
This report was researched and written by Jamie Fellner, senior advisor in the US Program
of Human Rights Watch, and Mary Price, vice president and general counsel of Families
Against Mandatory Minimums.
At Human Rights Watch, this report was edited by Maria McFarland, US Program acting
director, and Tom Porteous, deputy program director. Dinah Pokempner, general counsel,
provided legal review. At Families Against Mandatory Minimums, it was reviewed by Julie
Stewart, president, Molly Gill, legislative affairs counsel, Kate Taylor, research associate,
and Kevin Ring, consultant. Editing and production assistance was provided by Elena
Vanko, US Program senior associate. Anna Lopriore, creative manager, Grace Choi,
publications director, and Fitzroy Hepkins, administrative manager, greatly assisted with
production.
Human Rights Watch and Families Against Mandatory Minimums are grateful to the many
prisoners and their loved ones, advocates, and attorneys who helped us gain an
understanding of the compassionate release process and who trusted us with their stories.
We note with regret that some prisoners we met or learned about did not succeed in
securing compassionate release and died behind bars, separated from their families.
Consistent with longstanding practice, in this report we have used pseudonyms for current
prisoners.
We also wish to acknowledge our gratitude to the Bureau of Prisons for its cooperation and
assistance to us in connection with the research for this report. In particular, we appreciate
the openness to this project shown by BOP Director Charles Samuels and the willingness
of Kathleen Kenney, BOP assistant director and general counsel, to patiently and
forthrightly answer our many questions, to provide statistical data, and to facilitate our
visit to the Federal Medical Center at Butner, North Carolina. We also are grateful to the
willingness of Sara Revell, then warden at FMC Butner, and her staff in coordinating our
visit to the facility and our meetings with staff and prisoners.

THE ANSWER IS NO

80

We regret that the same cooperation and commitment to transparency was not shown by
the office of the deputy attorney general at the Department of Justice, which refused to
meet with us. The deputy attorney general also refused to respond directly to the written
questions we submitted concerning the Department’s policies about compassionate
release and guidance to the BOP.
Finally, we thank the former and current government officials who were willing to speak
with us about compassionate release and give us the benefit of their insights and
experience, even though almost all preferred to do so off the record.
Families Against Mandatory Minimums would like to express its debt to Pastor Paul Jones,
whose unflagging efforts on behalf of his imprisoned parishioner inspired this project, and
to the families of James Michael Bowers (1939-2002) and Michael Mahoney (1954-2004),
whose efforts to free their loved ones failed, but who compelled us to work to change the
culture of “no” at the Bureau of Prisons.

81

NOVEMBER 2012

Appendix
•

Letter from Human Rights Watch to the deputy attorney general, Department of
Justice, August 6, 2012. (p. -1-)

•

Letter from Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of
Prisons, to Human Rights Watch (in response to Human Rights Watch’s letter to the
deputy attorney general, above), October 22, 2012. (p. -4-)

•

Letter from Human Rights Watch to Kathleen M. Kenney, Assistant Director and
General Counsel, Bureau of Prisons, August 3, 2012. (p. -6-)

•

Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July
27, 2012. (p. -7-)

•

FMC Butner, Responses to Questions Submitted by Human Rights Watch, August 10,
2012. (p. -12-)

•

Memorandum from Kathleen M. Hawk, former director, Bureau of Prisons, to
executive staff (Hawk Memo), July 22, 1994. (p. -15-)

•

“Conversations with Staff About Compassionate Release,” Memorandum from
Victoria Blain (pseudonym) to Mary Price, Vice President and General Counsel,
Families Against Mandatory Minimums, September 20, 2012 (a detailed chronology
of her efforts to submit her request for compassionate release). (p. -17-)

•

Bureau of Prisons, Program Statement 5050.46, “Compassionate Release;
Procedures for Implementation of 18 U.S.C 3582 (c)(1)(A) & 4205(g),” May 19, 1998.
(p. -23-)

•

Letter from Michael J. Elston, Senior Counsel to the Assistant Attorney General, to
Ricardo H. Hinojosa, Chair, US Sentencing Commission (Elston Letter), July 14,
2006. (p. -30-)

•

Response to Request for Reduction in Sentence Consideration, to Philip Smith,
February 9, 2012. (p. -39-)

•

Memorandum from Sara M. Revell, Complex Warden, FMC Butner, to Caspar
McDonald (pseudonym), “Reduction in Sentence,” and other accompanying
documents. (p. -40-)

THE ANSWER IS NO

82

Jamie Fellner, Esq.
Senior Advisor, US Program
350 Fifth Avenue, 34th Floor
New York, NY 10118-3299
Tel:
212-290-4700
Fax:
212-736-1300
Fax:
917-591-3452
US PROGRAM

Sara Darehshori, Senior Counsel
Jamie Fellner, Senior Advisor
Antonio Ginatta, Advocacy Director
Ian Kysel, Aryeh Neier Fellow
Adam Lewis, Associate
Maria McFarland, Deputy Director
Grace Meng, Researcher
Alba Morales, Researcher
Alison Parker, Director
Laura Pitter, Counterterrorism Advisor
Nicole Pittman, Soros Justice Fellow
Andrea Prasow, Senior Counterterrorism Counsel
Samantha Reiser, Associate
Brian Root, Quantitative Analyst
Ricardo Sandoval Palos, Researcher
Elena Vanko, Associate

Human Rights Watch
Kenneth Roth, Executive Director

August 6, 2012
To: The Deputy Attorney General, Department of Justice
From: Human Rights Watch
Subject: Motions for a Reduction in
Sentence/Compassionate Release
We are submitting the questions below with the hopes of obtaining
clarification of the role of the Department of Justice (DOJ) in the Bureau
of Prison’s Reduction in Sentence/Compassionate Release program and
the DOJ’s views about it. We look forward to receiving your answers or to
a meeting, to discuss them should you prefer. Please address your
response to Jamie Fellner, at the address on this letterhead.

Michele Alexander, Deputy Executive Director, Development and
Global Initiatives
Carroll Bogert, Deputy Executive Director, External Relations
Jan Egeland, Europe Director and Deputy Executive Director
Iain Levine, Deputy Executive Director, Program
Chuck Lustig, Deputy Executive Director, Operations

In the questions below, all references to motions for compassionate
release or for reduction in sentence refer to motions for a sentence
reduction under 18 USC §3582 (c)(1)(A).

Walid Ayoub, Information Technology Director
Emma Daly, Communications Director
Barbara Guglielmo, Finance and Administration Director
Peggy Hicks, Global Advocacy Director
Babatunde Olugboji, Deputy Program Director
Dinah PoKempner, General Counsel
Tom Porteous, Deputy Program Director
James Ross, Legal & Policy Director
Joe Saunders, Deputy Program Director
Frances Sinha, Human Resources Director
James F. Hoge, Jr., Chair

Board of Directors
James F. Hoge, Jr., Chair
Susan Manilow, Vice-Chair
Joel Motley, Vice-Chair
Sid Sheinberg, Vice-Chair	
  
John J. Studzinski, Vice-Chair
Hassan Elmasry, Treasurer
Bruce Rabb, Secretary
Karen Ackman
Jorge Castañeda
Tony Elliott
Michael G. Fisch
Michael E. Gellert
Hina Jilani
Betsy Karel
Wendy Keys
Robert Kissane
Oki Matsumoto
Barry Meyer
Pat Mitchell
Aoife O’Brien
Joan R. Platt
Amy Rao
Neil Rimer
Victoria Riskin
Amy L. Robbins
Shelley Rubin
Kevin P. Ryan
Jean-Louis Servan-Schreiber
Javier Solana
Siri Stolt-Nielsen
Darian W. Swig
John R. Taylor
Marie Warburg
Catherine Zennström
Robert L. Bernstein, Founding Chair, (1979-1997)

1) Does compassionate release further the Justice Department’s
criminal justice goals and if so, how?
2) Does the Justice Department believe more inmates should receive
compassionate release and if so, what steps does it believe
would facilitate that increase? If not, why not?
3) In light of the concerns expressed in a recent speech by Criminal
Division Chief Lanny Breuer to the National District Attorneys
Association
(http://www.justice.gov/criminal/pr/speeches/2012/crm-speech120723.html), and in a letter to the United States Sentencing
Commission (“USSC”)
(http://www.justice.gov/criminal/foia/docs/2012-annual-letter-tothe-us-sentencing-commission.pdf) about the need to contain the
costs of incarceration and overcrowding in Bureau of Prison (BOP)
facilities , is the Department prepared to reevaluate, or is it
currently reevaluating, the BOP’s use of compassionate release
motions, as a potential way to lower prison costs and save bed
space?
4) To our knowledge, the BOP has never issued any rule, regulation
or program statement setting forth what constitutes
1

Jonathan F. Fanton, Chair (1998-2003)
Jane Olson, Chair (2004-2010)

AMSTERDAM · BEIRUT · BERLIN · BRUSSELS · CHICAGO · GENEVA · JOHANNESBURG · LONDON · LOS ANGELES · MOSCOW ·
YORK · PARIS ·
SAN FRANCISCO - TOKYO · TORONTO · WASHINGTON

NAIROBI · NEW

“extraordinary and compelling circumstances” warranting a motion by the Director
for a reduction in sentence. The most recent BOP guidance of which we are aware
appears to limit compassionate release to inmates within one year of death or with
an “extremely serious or debilitating” medical condition.218 In 2007, the U.S.
Sentencing Commission amended commentary to USSG § 1B1.13 to describe the
circumstances that it believes satisfy the requirements of 18 USC §3582 (c)(1)(A). The
guidance in USSG § 1B1.13 includes some grounds for release that are different from
those traditionally used by the BOP, e.g.: “the death or incapacitation of the
defendant’s only family member capable of caring for the defendant’s minor child or
minor children.” USSG § 1B1.13, cmt. 1 (A)(iii).
a. Does the Justice Department believe that USSG §1B1.13 describes
circumstances that are “extraordinary and compelling” under 18 USC
§3582 (c)(1)(A) that might warrant a motion by the BOP?
b. If so, has the BOP made motions for a reduction in sentence when
circumstances other than impending death or “severe or incapacitating
medical or mental health conditions” are present?
c. If not, what is the Justice Department’s understanding of the types of
circumstances that warrant a motion for compassionate release?
d. What guidance has the Justice Department provided to the BOP regarding
circumstances that might be considered “extraordinary and compelling?”
5) Under 18 USC §3582(c)(1)(A), the sentencing court, in making a decision with regard
to a motion to reduce a sentence, must take into consideration the factors
delineated in 18 USC §3553– including the nature and seriousness of the offense
and public safety. USSG § 1B1.13 also indicates that the sentencing court should
consider public safety. Nevertheless, in declining to make motions for a reduction in
sentence, the BOP often explains its decision as due to the inmate’s offense and the
risk of re-offending, i.e. on public safety grounds. What law or regulation authorizes
the BOP to take into account considerations of public safety in deciding whether to
make a motion for a sentence reduction? The Hawk-Sawyer Memo referred to above
included a number of considerations the BOP staff should consider and balance
when evaluating individual cases for possible recommendation for release, e.g., the
nature and circumstances of the offense; the risk of recidivism; criminal history; age;
sentence length and how much of the sentence remains, among others. While these
are important considerations for a judge to consider, it is not made clear why the
BOP should consider them.
218 Memorandum from Kathleen Hawk Sawyer, former director of the United States Federal Bureau of Prisons, to Executive Staff, July 22,
1994.

2

a. Does the DOJ believe the factors in the Hawk-Sawyer memo should be
considered by the BOP in evaluating whether to bring a motion for a
sentence reduction and if so, why?
b. In the opinion of the DOJ, what law or regulation authorizes the BOP to
consider such factors in determining whether to bring a motion?
c. Does the DOJ agree that such considerations are best left to the court and
if not, why not?
d. If the DOJ believes that these considerations are best left to the BOP, has
the DOJ given the BOP any guidance on how to evaluate and weigh these
factors when deciding whether a motion is warranted?
6) What criterion does the Deputy Attorney General (DAG) use, and what guidance has
the Justice Department provided to the BOP to assess whether a motion for
compassionate release should be made? Has the Justice Department provided any
guidance to the BOP regarding this? If so, how and to what extent is the BOP advised
to take into account such factors as the nature of the offense, the likelihood of reoffending, and the amount of the sentence served to date?
7) What is the role of the Deputy Attorney General’s office (DAG) in the decision-making
process by which the BOP decides whether to ask a US Attorney to file a motion on
its behalf seeking a reduction in sentence?
8) When is the BOP required or expected to consult with the DAG, or seek its opinion
with regard to a possible 18 USC §3582 (c)(1)(A) motion?
9) What criteria or considerations does the DAG use in evaluating possible motions for
a reduction in sentence?
10) If the DAG disagrees with the BOP, how is the difference resolved? Does the DAG
have final say over whether a motion will be brought?
11) Does the Justice Department expect the BOP to consult with the US Attorney when
considering whether a 18 USC §3582 (c)(1)(A) motion should be filed?
12) Does the US Attorney have authority to refuse to file a motion upon request of the
BOP?
13) What instructions, training, or guidance has the Justice Department provided to US
Attorneys regarding requests for motions for sentence reduction?
14) How many 18 USC §3582 (c)(1)(A) cases did the DAG review or consider in 2011?
a. In how many of those cases did the DAG object to, or counsel against, a
motion for reduction in sentence and for what reasons? In how many of those
cases did the DAG counsel the BOP to seek the motion?
b. In how many cases did the DAG request that the BOP obtain additional
information, and what was the nature of the information sought?
3

u.s.
U.S. I){'partrnt!nt
D{'partment of Justice
Federal Bureau
Bureau of Prisuns
Prisons

om".- ,'I .h.,' G,...."",. ( " ~"t""

OCT 2 2 2!112

Jamie Fellner, Esq.
senior Advisor
u. S. Program
Human Rights Watch
Watc h
Fiffth
th Avenue
350 Fi
Avenue,, 34lh
34 th Floor
New York, New York 10118-3299
Dear Ms. Fell ner:
II write in response
r esponse to your letter to the Deputy Attorney
General, dated August 6, 2012,
2012.
In your letter, you ask several
questions regarding the Bureau of Prisons'
("Bureau~
or "BOP")
"BOP~)
Prisons ' ("Bureau
Reduction i n Sentence/Compassionate
("RISN) program. We
Sen tence/Compassionate Release ("RIS")
agree that
tha t appropr iate implementation
implementat i on of the RIS
RI S program is vi tally
ta l l y
important and appreciate
app reciate your interest in this issue.
H

The Department of Justice ("Department
( "Department " or "DOJ")
" DOJ") , through the
t o information regarding
BOP , has provided you with extensive access to
the RIS program.
program . In May 2012,
20 12, I met with you along wi th BOP Di rector
Charles
Char les Samuels and now Deputy Oirector
Director Thomas Kane
Kan e to answer your
questions regarding the RIS program. We also accommodated your
your
request to visit a Bureau facility
f acility by providing access tor a visit
to the Federal Medical
Medica l Center (FMC) in Butner, North Carolina.
During thi
thiss visit in June
J u ne 2012, you wer e provided a tour of several
medical units and you interviewed Warden
warden Sara Revell and other
other FMC
Butner staff as well as inmates
inmates.. In
I n addition,
addit i on , you have interviewed
Bureau Central
Ce ntral Office legal staff
s taff and have been provided written
responses to
t o seve
several
r al inquiries.
i nquiries .
The authority and basis for implementation
implementat ion of the RIS program
statute,, BOP regulation, and BOP policy. The RIS
is set forth
f orth in statute
statutory authority
author ity is found in 18 U.S.C
U.S .C § 3582(c)
3582 (c) (1) (A) (i),
(i) which
permits the
th~ court to modify a term of imprisonment in any case in
which
whi ch the court, upon motion ot the Oirector
Director of the BOP and after
af ter
considering specifi
ed factors
speci fied
facto rs to the extent they are applicable,
compelling
reasona warrant such
"finds that . . . extraordinary and compe
lling reasons
I

4

a reduction
The BOP's regulations (28 CFR §§ 571.60 - 571.64)
and policy (program Statement 5050.46) provide guidance and
procedures for the RIS program.
The regulations permit a request
for a RIS "only when there are particularly extraordinary or
compelling circumstances which could not reasonably have been
foreseen by the court
court at the time of sentencing."
sent encing . " :28
28 C.F.R.
C. F. R.
S
§ 571.61(a).
571.6l(~).
The regulations and
a nd policy provide for BOP
consideration of RIS requests in both medical and nonnon - medical
circumstances. The BOP reviews each RIS request on a case by case
basis. Historically, the BOP has submitted RIS requests to a
sentencing judge on behalf of inmates who are suffering from a
terminal illness with a life expectancy of less than
t han one year or are
severely debilitated. The Bureau consults with the United States
Attorney's Office that prosecuted the inmate in all RIS cases. The
Bureau considers the information provided by the United
Un ited States
Attorney's Office in making a decision regarding a RIS request.
request .
AS a law enrorcement
enforcement agency, the Bureau's mission to protect
society includes a responsibility to provide for public safety and
make decisions with public safety in mind. Granting inmate
furloughs, escorting inmates into the community, and deSignating
inmates to appropriate facilities, are examples of decisions that
the
t he BOP routinely makes that involve public safety considerations.
As we have discussed, we consider it the Bureau's responsibility to
consider public safety when determining whether to pursue an inmate's
release
r e l ease through a RIS motion.
As you are aware, BOP is reviewing and assessing our use of the
RIS statute.
I hope that this in
information
f ormation is helpful.
Please note that to
the extent your letter seeks information regarding pre-decisional
internal deliberations and decisions on law enforcement matters, we
are not able to
t o provide answers to all of your questions.
Sincerely,
Sin
cer ely,

~~
~.·K~
~~K~
Di;:~~~~/~neral

Assistant

2

5

Counsel

Jamie Fellner, Esq.
Senior Advisor, US Program
350 Fifth Avenue, 34th Floor
New York, NY 10118-3299
Tel:
212-290-4700
Fax:
212-736-1300
Fax:
917-591-3452
US PROGRAM

Sara Darehshori, Senior Counsel
Jamie Fellner, Senior Advisor
Antonio Ginatta, Advocacy Director
Ian Kysel, Aryeh Neier Fellow
Adam Lewis, Associate
Maria McFarland, Deputy Director
Grace Meng, Researcher
Alba Morales, Researcher
Alison Parker, Director
Laura Pitter, Counterterrorism Advisor
Nicole Pittman, Soros Justice Fellow
Andrea Prasow, Senior Counterterrorism Counsel
Samantha Reiser, Associate
Brian Root, Quantitative Analyst
Ricardo Sandoval Palos, Researcher
Elena Vanko, Associate

Human Rights Watch
Kenneth Roth, Executive Director
Michele Alexander, Deputy Executive Director, Development and
Global Initiatives
Carroll Bogert, Deputy Executive Director, External Relations
Jan Egeland, Europe Director and Deputy Executive Director
Iain Levine, Deputy Executive Director, Program
Chuck Lustig, Deputy Executive Director, Operations
Walid Ayoub, Information Technology Director

August 3, 2012
Kathleen M. Kenney, Assistant Director/General Counsel
Bureau of Prisons
320 First St., NW
Washington, DC 20534
Via USPS and facsimile at (202) 307 2995

Dear Assistant Director Kenney:
We continue to seek clarification of the nature and scope of the
Department of Justice’s role in the Bureau of Prison’s Reduction in
Sentence/Compassionate Release program. While the information and
perspectives we received from you and Director Samuels were extremely
helpful, we understand that you are not in a position to speak for the
Justice Department itself.

Emma Daly, Communications Director
Barbara Guglielmo, Finance and Administration Director
Peggy Hicks, Global Advocacy Director
Babatunde Olugboji, Deputy Program Director
Dinah PoKempner, General Counsel
Tom Porteous, Deputy Program Director
James Ross, Legal & Policy Director
Joe Saunders, Deputy Program Director
Frances Sinha, Human Resources Director
James F. Hoge, Jr., Chair

Board of Directors
James F. Hoge, Jr., Chair
Susan Manilow, Vice-Chair
Joel Motley, Vice-Chair
Sid Sheinberg, Vice-Chair	
  
John J. Studzinski, Vice-Chair
Hassan Elmasry, Treasurer

Since you have been designated the liaison to us for communications
with the Justice Department, I hope you will forward the attached
questions about Reductions in Sentence/Compassionate Release to the
Office of the Deputy Attorney General (DAG). I think the questions lend
themselves to a meeting, but if the DAG prefers to answer them in
writing, we will of course be grateful for that. I would be extremely
grateful if you would also communicate to the DAG that in light of the
delays in receiving a response to our repeated requests for a meeting,
we hope that the responses to these questions can be expedited.

Bruce Rabb, Secretary
Karen Ackman
Jorge Castañeda
Tony Elliott

Many thanks for your continued assistance with this matter.

Michael G. Fisch
Michael E. Gellert
Hina Jilani
Betsy Karel
Wendy Keys
Robert Kissane

Sincerely,

Oki Matsumoto
Barry Meyer
Pat Mitchell
Aoife O’Brien
Joan R. Platt
Amy Rao
Neil Rimer
Victoria Riskin
Amy L. Robbins
Shelley Rubin

Jamie Fellner, Esq.
Senior Advisor
US Program

Kevin P. Ryan
Jean-Louis Servan-Schreiber
Javier Solana
Siri Stolt-Nielsen
Darian W. Swig
John R. Taylor
Marie Warburg
Catherine Zennström
Robert L. Bernstein, Founding Chair, (1979-1997)
Jonathan F. Fanton, Chair (1998-2003)
Jane Olson, Chair (2004-2010)

6

AMSTERDAM · BEIRUT · BERLIN · BRUSSELS · CHICAGO · GENEVA · JOHANNESBURG · LONDON · LOS ANGELES · MOSCOW ·
YORK · PARIS ·
SAN FRANCISCO - TOKYO · TORONTO · WASHINGTON

NAIROBI · NEW

Responses to questions submitted by Human Rights Watch
(July 27, 2012)
I.
For calendar year 2011, how many requests for the BOP to file a motion
in court to seek reduction of sentence “because of “extraordinary and
compelling reasons” (i.e., compassionate release) were reviewed at
headquarters having been approved by regional directors.
There were 38 RIS requests received in Central Office filed by 37
inmates (one inmate filed a second request for reconsideration). All of
the requests were reviewed.
A.

How many were sought by inmates who were terminally ill.

30 cases forwarded to Central Office were cases represented as
terminal. In some cases Health Services Division determined that the
inmate did not, in fact, meet the medical criteria for terminal and
thus, these cases were denied, as not presently appropriate for
consideration.
a.

Of those, how many were approved by general counsel’s office.

The General Counsel reviews all requests received in Central
Office. The General Counsel does not approve the cases, but
rather provides recommendations to the Director. If a request is
determined not to be medically warranted, the General Counsel
will deny the request.
b. Of those approved by general counsel, how many were approved
by director.
Of the 30 cases that were represented as terminal, the Director
approved 25 of those cases.
c. For those that were denied, how many were denied on medical
grounds and how many were denied on other grounds (please
identify those grounds).
Of the 5 cases denied:
3 were denied for medical reasons, but 1 was approved upon
reconsideration. 2 were denied for non-medical reasons.
d. How many inmates seeking compassionate release whose cases
were sent to headquarters died before final decision made by
Director?
2
B. How many were sought by inmates with medical conditions other than
terminal illness.

7

5 RIS requests were sought by inmates for medical conditions
other than terminal illness.
a.

Of those, how many were approved by general counsel’s office.

See response to I.A.a.
b. Of those approved by general counsel, how many were approved
by Director.
The Director approved 5 cases.
c. For those that were denied, how many were denied on medical
grounds and how many were denied on other grounds (please
identify those grounds).
N/A
C. How many were sought by inmates on grounds other than medical
conditions/terminal illness.
2
a.

Of those, how many were approved by general counsel’s office.

See response to I.A.a.
b. Of those approved by general counsel, how many were approved
by Director.
N/A
c. For those that were denied, what were the grounds for the
denial.
One was denied because the circumstances were not extraordinary
or compelling as expressed in the United States Sentencing
Guidelines 1B1.13. The other was denied because the inmate’s
history raised concerns about whether the inmate could remain
crime-free upon release.
D. In how many of the cases denied by the general counsel or the
Director had the office of the Deputy Attorney General or prosecuting
attorneys indicated they opposed a motion for reduction of sentence? On
what grounds did they oppose sentence reduction?
None
E. How many motions did the BOP file in court to seek sentence
reduction because of the existence of “extraordinary and compelling
reasons.”
United States Attorneys’ Offices submitted 30 motions on behalf of the
Director of the BOP.

8

a.

How many motions were granted?

All were granted.
b.

May we have copies of the motions and the courts’ decisions?

Due to Privacy Act restrictions, the BOP is not able
to release these documents.
c. How many inmates on whose behalf the BOP filed motions for
sentence reduction died before the court’s decision was rendered?
None
d. How many inmates for whom courts ordered sentence reduction
to time served died before they were actually released from the
BOP?
None
II. How many inmates pursued administrative remedies in 2011 because wardens
denied their request that BOP file motions with court seeking sentence
reduction because of the existence of extraordinary and compelling reasons?
A. How many filed at warden level; how many did the warden
grant.
There were approximately 41 administrative remedies (BP-9’s) filed at
the institution level. 1 was granted.
B. How many were appealed to regional directors and how many did the
regional directors grant.
24 were appealed and 1 was granted.
C.
How many inmates appealed to headquarters and how many did
headquarters grant?
23 were appealed to Central Office. None were granted. One was returned
to the institution for reconsideration.
III. Does the BOP have any written analysis of its authority to consider of
public safety in response to requests from inmates to file motions for a
sentence reduction on grounds of “extraordinary and compelling reasons.” If
so, could that analysis be provided.
Case law and legislative history describe the Director’s discretion to
determine whether extraordinary and compelling reasons exist to warrant
a reduction in sentence. See also, July 22, 1994, memorandum from the
Director to the Executive Staff clarifying the medical criteria and the
factors to consider for determining appropriateness of a reduction in
sentence (attached.)
9

IV.

Who is responsible for initiating a compassionate release request?

Anyone can initiate a compassionate release request.
Ordinarily,
the request is made in writing and submitted by
the inmate. The Bureau
of Prisons processes a request made
by another person on behalf of an
inmate in the same manner
as an inmate's request. Staff refer a request
received at the
Central Office or at a Regional Office to the Warden of the institution
where the inmate is confined. See PS 5050.46, Compassionate Release;
Procedures for Implementation of 18 U.S.C. 3582 (c)(1)(A) & 4205(g)(May
19, 1998).
A.

If the inmates, what guidance is provided to them
a.

to advise them of the availability of compassionate release,

b.

to provide them the procedures they and the BOP follow

c. and to explain to them the criteria the BOP uses to evaluate
a petition
d. If the guidance is provided in writing, can you provide
copies of the materials given to the inmates.
PS 5050.46 provides guidance for the inmates and is available to
all inmates via the Electronic Law Library (ELL), and is available
to the public at www.BOP.gov.
B. If staff is responsible, what guidance is provided to
them, other
than the information in the Program Statement from 1998, as to
a.

who might be eligible for compassionate release,

b.

the

c.

the criteria to address in making decision on the request..

procedures to follow, and

d. Are there any written materials other than the Program
Statement that address these procedures and criteria? If so, may
we have copies.
Staff is not tasked with the responsibility for initiating the RIS
process. They are tasked with processing the RIS request in accordance
with PS 5050.46, which provides guidance. In addition, guidance has
been provided in the form of training and training materials
(attached). The training and training materials discuss eligibility
criteria, procedures, and criteria for analyzing the appropriateness of
inmates who meet the initial medical criteria. These training materials
incorporate the 1994 memorandum from the Director (previously
discussed). Staff may seek the assistance of legal staff, particularly

10

Central Office legal staff who are responsible for administering the
program.
V. Are any staff charged with the responsibility as party of their job to
identify inmates who might be eligible for compassionate release on grounds
of terminal illness or other medical conditions?
No.
A.

If so, which staff?

N/A
B. Are such staff instructed to advise the inmates of their
potential eligibility and how to make a request to the warden?
N/A
VI. What assistance is provided prisoners who cannot advocate for themselves
for compassionate release, e.g., because of illness, mental health status,
illiteracy or incapacitation
A. With respect to initial requests for compassionate release to
the warden
Inmates may seek the assistance of family, friends, or attorneys, but
staff will provide general guidance. Inmates in Medical Referral
Centers may seek general assistance from Staff including Social
Workers.
B.

With respect to appeals of adverse decisions from the warden.

Program Statement 1330.16, Administrative Remedy Program, also
addresses procedures for filing an administrative Remedy. The PS
provides in Section 10:
a.
An inmate may obtain assistance from another inmate
or from institution staff in preparing a Request or an Appeal.
An inmate may also obtain assistance from outside sources, such
as family members or attorneys. . . .
b.
Wardens shall ensure that assistance is available for
inmates who are illiterate, disabled, or who are not functionally
literate in English. Such assistance includes provision of
reasonable accommodation in order for an inmate with a disability
to prepare and process a Request or an Appeal.]
For example, Wardens must ensure that staff (ordinarily unit
staff) provide assistance in the preparation or submission of an
Administrative Remedy or an Appeal upon being contacted by such
inmates that they are experiencing a problem.

11

FMC	
  Butner’s	
  responses	
  to	
  questions	
  submitted	
  by	
  HRW	
  
(August	
  10,	
  2012)	
  

	
  

	
  
	
  

1) How	
  many	
  inmates	
  sought	
  compassionate	
  release	
  on	
  medical	
  grounds	
  in	
  calendar	
  
year	
  2011?	
  	
  	
  
164	
  inmates	
  requested	
  consideration	
  for	
  compassionate	
  release	
  for	
  reasons	
  the	
  
inmate	
  described	
  as	
  medical	
  reasons.	
  	
  However,	
  the	
  determination	
  of	
  whether	
  a	
  
compassionate	
  release	
  request	
  is	
  medically	
  warranted	
  is	
  determined	
  by	
  the	
  Tumor	
  
Board	
  or	
  the	
  inmate's	
  primary	
  physician.	
  	
  Of	
  the	
  164	
  cases	
  submitted,	
  66	
  were	
  
determined	
  to	
  be	
  medically	
  warranted	
  and	
  were	
  reviewed	
  by	
  the	
  institution’s	
  
multidisciplinary	
  team.	
  	
  Every	
  inmate	
  who	
  submits	
  a	
  RIS	
  request	
  receives	
  a	
  written	
  
response	
  concerning	
  his	
  request.	
  
	
  
a.	
  	
   How	
  many	
  did	
  the	
  warden	
  approve	
  and	
  send	
  to	
  the	
  region?	
  	
  	
  
The	
  Warden	
  approved	
  15.	
  	
  	
  
Butner	
  counts	
  the	
  number	
  of	
  inmates	
  in	
  the	
  year	
  the	
  activity	
  (denial	
  or	
  
release)	
  was	
  completed,	
  regardless	
  of	
  date	
  the	
  case	
  was	
  initiated,	
  whereas	
  the	
  
Central	
  Office	
  counts	
  cases	
  based	
  upon	
  the	
  calendar	
  year	
  the	
  case	
  was	
  
received	
  in	
  Central	
  Office,	
  regardless	
  of	
  when	
  the	
  case	
  is	
  completed.	
  	
  Please	
  
note,	
  in	
  2011,	
  in	
  accordance	
  with	
  the	
  Central	
  Office	
  counting	
  system,	
  the	
  
Director	
  approved	
  18	
  cases	
  from	
  Butner.	
  
	
  
b.	
   Of	
  those	
  sent	
  to	
  the	
  region,	
  how	
  many	
  did	
  the	
  regional	
  approve?	
  	
  	
  
The	
  Regional	
  Director	
  approved	
  15	
  and	
  all	
  were	
  forwarded	
  them	
  to	
  the	
  Central	
  
Office.	
  
i. Of	
  those	
  denied	
  by	
  regional,	
  what	
  were	
  the	
  grounds	
  for	
  denial.	
  	
  N/A	
  
	
  c.	
  	
   Of	
  those	
  approved	
  by	
  regional,	
  how	
  many	
  were	
  ultimately	
  approved	
  by	
  BOP	
  
director?	
  	
  The	
  Director	
  approved	
  12.	
  
	
  
i.	
   Of	
  those	
  that	
  were	
  denied	
  by	
  the	
  General	
  Counsel	
  or	
  the	
  Director,	
  what	
  
were	
  the	
  grounds	
  for	
  denial.	
  	
  
2	
  inmates	
  were	
  not	
  medically	
  appropriate	
  for	
  consideration.	
  	
  	
  
1	
  inmate	
  posed	
  a	
  risk	
  to	
  the	
  community.	
  	
  	
  

2) Among	
  the	
  requests	
  for	
  compassionate	
  release	
  on	
  medical	
  grounds	
  in	
  2011,	
  how	
  many	
  
did	
  the	
  warden	
  deny?	
  	
  Of	
  the	
  66	
  cases	
  that	
  were	
  determined	
  medically	
  warranted	
  for	
  
review,	
  the	
  Warden	
  denied	
  12	
  requests.	
  
a. Grounds	
  for	
  warden’s	
  denial	
  

12

	
  

	
  

How	
  many	
  were	
  denied	
  because	
  the	
  medical	
  condition	
  did	
  not	
  warrant	
  
compassionate	
  release.	
  	
  All	
  66	
  cases	
  were	
  determined	
  to	
  be	
  medically	
  
appropriate	
  for	
  reviewed	
  by	
  the	
  multidisciplinary	
  team.	
  	
  

How	
  many	
  were	
  denied	
  because	
  release	
  might	
  jeopardize	
  public	
  safety?	
  	
  
12.	
  	
  These	
  were	
  cases	
  that	
  had	
  been	
  considered	
  medically	
  appropriate	
  
for	
  review	
  by	
  the	
  multidisciplinary	
  team.	
  
	
  
3) Did	
  a	
  multi-­‐disciplinary	
  team	
  of	
  staff	
  review	
  each	
  request	
  for	
  compassionate	
  release	
  
made	
  in	
  2011?	
  	
  	
  
In	
  2011,	
  the	
  multidisciplinary	
  team	
  reviewed	
  66	
  requests	
  that	
  were	
  medically	
  
warranted	
  for	
  review.	
  
a. Who	
  was	
  on	
  the	
  team?	
  	
  	
  
The	
  team	
  is	
  generally	
  comprised	
  of	
  the	
  following	
  Institution	
  staff	
  members:	
  
Chairperson,	
  Primary	
  Social	
  Worker,	
  Psychologist,	
  Director	
  of	
  Nursing,	
  
Attorney,	
  Primary	
  Case	
  Manager,	
  Unit	
  Manager,	
  Primary	
  Physician	
  or	
  
Physician’s	
  Assistant	
  or	
  both,	
  and	
  sometimes	
  the	
  Chaplain.	
  
b. What	
  materials	
  did	
  the	
  team	
  review	
  in	
  connection	
  with	
  compassionate	
  release	
  
requests.	
  	
  
Materials	
  reviewed	
  included,	
  but	
  were	
  not	
  limited	
  to,	
  central	
  files,	
  Medical	
  
staff’s	
  verbal	
  and	
  written	
  summaries,	
  Social	
  Worker’s	
  verbal	
  and	
  written	
  
summaries.	
  	
  
c. How	
  many	
  requests,	
  if	
  any,	
  were	
  not	
  reviewed	
  by	
  the	
  team?	
  	
  The	
  team	
  reviewed	
  
66	
  cases.	
  
d. Were	
  there	
  any	
  cases	
  in	
  which	
  the	
  team	
  recommended	
  to	
  the	
  warden	
  that	
  the	
  
request	
  be	
  granted,	
  but	
  the	
  warden	
  denied	
  the	
  request?	
  If	
  so,	
  how	
  many	
  and	
  
what	
  were	
  the	
  reasons	
  for	
  the	
  warden’s	
  decision?	
  	
  None.	
  
e. Were	
  there	
  any	
  cases	
  in	
  which	
  the	
  team	
  recommended	
  to	
  the	
  warden	
  that	
  the	
  
request	
  be	
  denied	
  but	
  the	
  warden	
  granted	
  it?	
  If	
  so,	
  how	
  many	
  and	
  what	
  were	
  
the	
  reasons	
  for	
  the	
  warden’s	
  decision?	
  	
  13.	
  	
  No	
  reason	
  was	
  given	
  by	
  the	
  
Warden.	
  	
  Of	
  these	
  13,	
  the	
  majority	
  of	
  the	
  inmates	
  expired	
  during	
  the	
  process	
  
of	
  completing	
  the	
  release	
  planning.	
  
	
  
4) How	
  many	
  BOP	
  motions	
  to	
  the	
  court	
  for	
  sentence	
  reduction	
  were	
  made	
  for	
  inmates	
  
confined	
  at	
  FMC	
  Butner	
  between	
  January	
  1,	
  2011	
  and	
  June	
  1,	
  2012?	
  	
  	
  
During	
  the	
  17-­‐month	
  time	
  frame	
  identified,	
  the	
  court	
  issued	
  33	
  court	
  orders	
  for	
  
compassionate	
  release.	
  	
  Central	
  Office	
  indicates	
  approximately	
  29	
  court	
  orders	
  were	
  
filed	
  during	
  this	
  period	
  because	
  Central	
  Office	
  tracks	
  these	
  cases	
  as	
  described	
  in	
  #1	
  
(a).	
  
	
  
Did	
  the	
  courts	
  reduce	
  the	
  sentences	
  in	
  each	
  case	
  to	
  time	
  served?	
  	
  Yes.	
  
	
  
13

	
  

5) How	
  many	
  inmates	
  sought	
  compassionate	
  release	
  in	
  calendar	
  year	
  2011	
  on	
  grounds	
  of	
  
terminal	
  illness?	
  	
  91	
  inmates	
  requested	
  compassionate	
  release,	
  claiming	
  they	
  suffered	
  
from	
  a	
  terminal	
  illness.	
  	
  66	
  cases	
  were	
  reviewed	
  because	
  they	
  were	
  medically	
  
warranted,	
  including	
  cases	
  where	
  the	
  inmates	
  were	
  either	
  terminally	
  ill	
  or	
  severely	
  
debilitated.	
  
	
  
a. Did	
  the	
  BOP	
  file	
  motions	
  for	
  sentence	
  reduction	
  for	
  any	
  of	
  them?	
  	
  See	
  answer	
  
1(c)	
  	
  
b. Of	
  those	
  inmates	
  whose	
  requests	
  were	
  denied	
  by	
  the	
  warden,	
  how	
  many	
  
subsequently	
  died.	
  	
  0	
  
c. What	
  was	
  the	
  date	
  of	
  warden’s	
  denial	
  and	
  the	
  date	
  of	
  death.	
  	
  N/A	
  
	
  
6) How	
  many	
  inmates	
  currently	
  in	
  the	
  hospice	
  at	
  FMC	
  have	
  sought	
  compassionate	
  release?	
  	
  
1.	
  	
  This	
  is	
  a	
  small	
  8-­‐bed	
  unit.	
  	
  At	
  this	
  time	
  there	
  is	
  one	
  inmate	
  in	
  the	
  unit.	
  	
  This	
  number	
  
can	
  fluctuate.	
  
	
  
	
  

7) Among	
  the	
  inmates	
  who	
  died	
  between	
  January	
  1,	
  2011	
  and	
  June	
  1,	
  2012,	
  how	
  many	
  had	
  
sought	
  compassionate	
  release?	
  	
  For	
  this	
  17-­‐month	
  time	
  frame-­‐60	
  inmates	
  died.	
  
	
  
In	
  2011:	
  
22	
  inmates	
  died	
  after	
  they	
  were	
  reviewed	
  by	
  the	
  multidisciplinary	
  team.	
  
22	
  inmates	
  died	
  who	
  were	
  never	
  reviewed	
  by	
  the	
  multidisciplinary	
  team	
  (The	
  reasons	
  
they	
  were	
  never	
  reviewed	
  include,	
  but	
  are	
  not	
  limited	
  to,	
  no	
  release	
  plan,	
  unresolved	
  
detainers,	
  transfer	
  to	
  Butner	
  when	
  the	
  disease	
  was	
  too	
  advanced,	
  parole	
  cases,	
  etc.).	
  	
  
In	
  2012:	
  	
  
16	
  inmates	
  died	
  as	
  of	
  June	
  2012.	
  
	
  
a. From	
  January	
  1,	
  2011	
  through	
  June	
  1,	
  2012,	
  how	
  many	
  inmates	
  pursued	
  
administrative	
  remedies	
  after	
  the	
  denial	
  of	
  their	
  request	
  for	
  compassionate	
  
release?	
  	
  There	
  were	
  4	
  Administrative	
  Remedies	
  filed	
  following	
  the	
  denial	
  of	
  
the	
  compassionate	
  release	
  request.	
  	
  	
  
b. How	
  many	
  did	
  the	
  warden	
  grant?	
  	
  0	
  
c. Of	
  those	
  the	
  warden	
  denied,	
  how	
  many	
  were	
  granted	
  by	
  regional	
  or	
  
headquarters?	
  	
  N/A	
  
	
  
	
  

14

Jus(i
ce
U.S. Depnrtm
Dcpnnm e or
m of Ju
s (ice

Federa
Prisons
Federall Bureau of Pri
sons

Office
rn< DiO:ClOr
Offlce 0/ (h<
Din:ClOr

WaSninl{fOn
Washin',{fOn ,

DC 2053"

July 22
2 2,, 1994

MEMORANDUM FOR EXECUTIVE STAFF

FROM:

d.~~~
L~~~

Federal Bureau of Prisons
SUBJECT;

Compassionate Release Requests

The Bureau of Prisons has historically taken a conservative
approach to filing a motion with the courts for the compassionate
release of an inmate under 18 U.S.C. § 4205(g) or
3582(.c)(I)(A). Until recently, our general guideline was to
§ 3582(c)(1)(A).
reco=end release of an inmate
irunate only in cases of terminal illness
when life expectancy was six months or less. Not many months
ago, we extended the time limit to a one year life
l ife expectancy as
long as medical staf~ f~lt comfortable with the accuracy of their
prediction of life expectancy. Of course, this is a general
guideline, not a requirement.
As we have further reviewed this issue, it has come to our
attention that there may be other cases that merit consideration
are na,
for release. These cases still fall within the medical arena,
but may not be terminal or lend themselves to a precise
prediction of life expectancy. Nevertheless, s uch cases may be
extremely
e xtremely serlous
se-rl.ous and debilitating.
Whil e each case must be judged on an individual basis, with
While
c onsideration of a number of factors, we are willing
will ing to consider
consideration
other cases for possible recommendation for release.
r elease. I n
evaluating
s ubmi t, you and
e valuating individual cases that you may wish to submit,
a nd balance the following factors,
factors , in
yyour
our staff should consider and
addition
add ition to others that may bear on your recommendation:
the nature and
a nd c ircumstances of the offense (e .g.,
. g ., was
violence or a we
apo n used);
weapon
15

the
person
t he criminal
crimina l and pe
r son al history
h i story and
a n d characteristics
c h aracteristics
of
i nmate,
assessment
o f the inma
t e , includi ng an asse
ssment of wheth
wh e th e r th
t hee
inmate is likely to participate in cri
c r iminal
tics
mi n al ac ttii vi
v it
ie s
if released (Does
( Does the
t h e inmate
i nmate have oth
o th er c r im inal
in al
convictions?) ;
convictions?);
nmate
the age of the i nma
t e (both current age and
a n d age at
a t time
of
o f senten cing);
c ing);
the danger, if any, the inmate poses to th e
e ased (Does the inmate hav
t ory of
public if rel
released
havee a hhiisstory
vviolence?
iolence? could the inmate still commit hi s/her ppr
rii or
? );;
offense even in his / her present condition ?)
appropriate release plans, including family
f amil y or o ut
s ide
utside
resources (Does the inmate have insurance or th
thee
care?? I f rel
relea
sed,
ability to pay for necessary medical care
eased,
?) ;
would the cost of care be borne by taxpayers
taxpaye r s?)
inmate' s illness,
the nature and severity of the inmate's
illness ,
including consideration of whether outs id e medical
med ical care
will be necessary; for example:
an inmate with severe debilitating heart or
or
hi s or
kidney disease that clearly limits his
o r her
h er
daily activity and in which conventiona
conventionall treatment
such as medication, dialysis, or other measures
are not sufficient to stabilize the dis
disease
or
e ase or
illness;
an inmate with a terminal illness, but no
definitive life expectancy can be determined.
d e termined .
Cases which could be remedied with transplantation
will be considered, but other factors such as time
remaining on the inmate's sentence will be
rele ase
on
weighed heavily to determine if a releas
e moti
mo t io
is appropriate;
the length of the iinmate
nma t e 's sentence and the
t h e amount of
time left to s erve.
:h
e se factors
f actors are not criteria which the inmate must mee
me et
:hese
t to
~alify for consideration; rathe r, they are guide
guideli
ch
l i n es whi ch
;hould be evaluated before s taff make a final deci
s ion.
Staff
d e c is
i o n. St
aff
:houl
d not recommend compassionate
;hould
c ompas s ionate release mere ly because the
nma
t e has
h a s met a majority
ma jority of the
t h e above
a bove factors.
factor s .
I n stead, staff
nmate
Instead,
sta ff
their
orrectional
able
h ould
o ul d rely on the
i r c orrecti
onal jjudgment,
u d gment, avail
ava i lable
.ocumentation, and verifiable
v e rif iabl e information
i n forma tion in making

ecommendations.
ecomme ndations.
f:

OGC - LCI

File -

OGC
Exec Staff, OGe
16

Conversations with Staff
Stat'f about
Compassianate Release
Canversatians
ab.out Campassionate
1/5/11My husband went to the dactar
1/5/11-l1y
doctor and was
vias informed that something
wq.,s
wq..S

pancreas..
obstructing his bile duct, possibly a tumor on his pancreas

Dactors put a metal stint in his liver and camfirmed
comfirmed a
1/12/11- Dactars
malignant
ma;Lignant tumar an his pancreas. He was given information
abaut Campassianate
Compassianate Release by a sacial
social worker
warker there.
ther e .
1/13/11about the prognosis
for pancreati
1/13
/1 1- After reading abaut
pragnasis far
pancreaticc cancer and
that fewer than two percent survive for five years after
the diagnosis,
diagnasis, I went ta .open hause ta
to request infa'rlnation
info,(:matian
fram
ta apply far
from staff abaut
about haw
how to
for Campassianate
CompassiaJ1ate Rele,
Re1e.a se.
Caunse l ar G
,:
dan' t .know,
,knaw, .' you'll
yau' 11 have ta ask yaur
your
Caunselar
, : "I
"1 don't
"c:'
:a:";s=:e"',==m:':a"'n'"a"'g-,':::e"-r:-.""'~---'~c~a~s~e~.~m~a~n~a~g=.~e~r~.""'~~
'll be back?'"
Myself: "0.0 yau k.naw
knaw when she
s he'll
Caunselar
G. . )
'_ j "Sunday" (1/16/11)
Cauns e lor G'

~~~~~~----~

r 1I was called
Then I left. App rroximately
oximately five minutes late
later
'-

back tto
_o camp admin
a&nin by Case Manager S.

Case Manager
::"Wlly
infarmation an
Manage r S
::
"Why are
a:<: e yau requesting infarmatian
c.ompassian"t e Release?"
Compassianate
diagnosed with pane-r,
Mys,;lf: "My husbahd
husband was diagnaseq
paner.e atic cancer."
_ ___ :,"" Sub,,!it
SubIl!i t an
a n inmate
i runa te request
reque s t ta staff
s ta f f ."
."
"'.;:C:;:
C"'a"s:..;e"--M=a:.:n",a,,,g,,-e=r-,S,--,a:.;s"e"-.-M=a:.:n=-=a:::.g=e=r-'S"--'.,-____
1 /16/ 11- ;rl was called ta
to camp . admin by my Case Manager, Ms. S
who was
Who
w"s with bath
both chapllns W a n d F
both
_ with whom bath
about my husbands' conditian.
candition. She spake
SP9ke
I had spaken to abaut
with them alone for
for. approximately ten minutes while 1I waited
in the hallway, then she called me in.
Case Manager S . . ~:
j : "Ms. B'
H,. '
t he pragram
program
have you read ·the
stateme
nt on Compassianate
Campassionate Rel,
statement
Rel.e ase?"
Myself:"No,
spoke with the sacial
social wOl;-ker
wal;'ker at'the
Myself: "No, my husband spake
at' the
dactor's .office
office about
me t the cri·teria."
cri,teria."
dactar's
a,bou t it and said we met
Case Manager
S
,: "Nat
.;:Cc;a:,:s:..;e=-.M=a:;:n"'
a=-g...e=r-'S'--__
"Not accarding
ac cord ing ta
to the BOP you don't"
don' t"
~~~~~~~----~
c . .:: . '

Then she proceeded to read me the program
pragram statement and
shawed me the statement .of "extraardinary
"extraordinary and campelling
compelling
Circumstances
forseen at the time of sentencing."
sentencing ."
circumstances not farseen
Not wanting to argu
arguee , I changed th
thee subject.
Nat
Myself:"HoW about a Phane
pjoone call ta
to the doctor to try and find
Myself:"Haw
more information?"
informE!-tion?1I
out more

Case Manager S\
::C::::a:..:s::.:e"-,M=a::.n:::a",gc::e:.:r,--,Sl
,,,;,-_~,. :,

~~-=~~~~--~

"I
" 1 can
Gan do that, came
cOme back Tuesday.

1
17

(1/18/11)

ope,n houBe
hou's e a t camp admin to see
S E)E) Ms
Ms.. S
1/18/11- I went to open
the phone call to my husband's doctor •.

.__
. ,_ about

.=C:.::a;.:so:.:e"-,-,M;::a:..:n=.:az.g=e;:.r....."
Z-g=e;:.r-,S,,-~--,,-,,j:
Do you
you, have the iiIff.orroa
z::t f.orma tion
t ion you need?
.=C:.:a:..:so:.:e"-:..:M:::a:..:n:..:a
S::-~~,,-,,,
. j : IIliDo
need?"II ·.

Myself:
"Yes,, I have the phon'e numbers
number" here."
Mysel f: "Yes
Case Manager
S:__-L11
', I ""hat
",C;:a,.,s"e::-M:..:
,:::a,.,no;a",g..e=r....."s"i
"What do you want to ask?"
~~~~~~~--~

Mys elf: "Any kind of information <ibout my husband's condition
arid possibly some medical records so I can file for
and
Compassiona,te Rele'ase."
Compassionate
i

':: "They can't verify "ho
Case Manager S:
who you are over the
aren ' t going to
Your husband
phone, th ey aren't
t o tell YOll
yOu anything. Your

has to give consent."
con~ent""

intrqduce who'I
who' I WaS,
was, my husvand
Myself: "I thought you would introduce
husoand
has already told them I was in prison."
: "It doesn ''tt work lik",
that., I don't even
Case Manager S
:"It
likE;! that.
believe you're allowed to have his medical records he
be re
anyway,
an¥",ay , they contain pertinent information."
Then
confused , disappointed and
anC! oece.ived
oece,ived
The n I left feeling confused,
wondering
wonderi
ng why she had said she was going to ' allow me to call
it .
the doctor when she had no intention of letting me do it.
1/24/1l~

tumor- was confirmed as inoperable. I went
wen t to
My nusband's tumor
open house.
Myself:
Myself': "How do I SUbmit
8ubl1lit a request
regliest to the Warden?"
unsure after r eading
eac!ing the program
p,r ogram stateinent on hmv
I was \lnS\lre
h,my to
do this, if it was a BP-9 or a certain form,
s"-e"-~M",
'a,,,n:~
--,S,_-,-,--,-" ,;"A
A r egu est for ,vh
wh at? u ,
",-,C--,a",
C",a:.'.s::e=---:..:M",
:
'a:..:n
..:aa,,-g,,-,,e.=r
"g=e;:.r.-...."S:..
' _~-,-"
U

Myself:
"For Compassionate Release ."
Mysel£:"For
.
II

Case Manager S;
S:
secretary
~.e
Secret'
a ry M

: "Use the ,procedure."
pro<;:edure."
: "Cop-out, the
n BP-8,
BP~8, then BP-9."
then

Later that evening I put a cop-out (inmate request to staff)
in the mail box addressed to unit team.
1/25/11- I ,vas
Ms.
was called to camp admin by my
mY Case Manager, M
s. S
.=c:::a::.:.:s:,e~,=M"
s=e7::-,=M"a"n~aii-g=e=r-,S
"-_---,-"
,,
::c::a
a"n~aii--g
=e;:.r....."s=---_---,-

request?U
request?"

"I s th ish ow yo u wan t to s ubmi t your

. II
Myself; I1Yes ...

2

18

Case Manager S _
: "Your reasons for Compassionate Release are invalid,
-'e:::a::n"e=-e=rC::;i~s?
aorC\in ar y or
0 r compelling
compel l ing reason, no one can foresee
cancer is '' =n"'o"t:c"-a=-n=--:e:-:x::tr
not an extraorc'\inary
IJ • "
cancer Ms. B
Myself:
"That is what
Myself:"That
what . the program statement says, not
not reasonably
reasonab l y foreseen
at the time 0.£ sentencing."
sentencing
."
,
Cas e Manager
i: II11 What
What, are yo'Qr r.easons
r. ea sons, "Where
tolhere is your a,ocumentatioJ!?"
d,ocumentatioJ!?li
"C",a",s",e"-",M",a"n
",a::.g=e",r,-,SS",,,__=~i:
I

~~~~~~~~~

Myself: 1l 1 have it in my 'Unit,,"
'Unit. II
Myself:"I

Then I left to go get it and came back. I brought amendn)ent
i'lmendI1)ent 698, which
wh;i.ch
states an ext
raordinary or -compelling
e xtraordinary
compelling reason as the death or incapacitation
in capacitation
me~ber capa ble of
of. caring for minor chilqren.
of defendant's
defendant's only f .a mily member
cap'able
chi14ren.
,

l

.

Case Manager S·
_" I don't want the program
progra_m statement, I want something
else.
war1t documentation of your extraordinary
extri'lordinary or compelling .reasons.
e l se . I want
r easons .
Myself:"This
Myself:
"This is it , death of incapacitation of defendant's o nly family
member capable
I1)ember
capabl e of caring for minor children."
",C",a",so..eO-M",
..",a=n:.:a
",a=-g=e=
=gio!.e=r-,S
,---,_",_",_c=.
__: " Your husband isn't dead."
-"Cc:a;::so.e=-:.:M",a:::n
r---,S,--~",
Myself:"Not
tumor is inoperable.
inoperab l e .
Myself:
"Not yet , but he is incapacitated, and the tumo'r
My mom is handicapped
and
a sex offender.'/
offender ."
hand,icaPl?ed a_
nd my dad is a
Case Manager S

1:
"I
,:"1

your circumstances.

don't care about that
that,, I want documentation of

II
11

Myself: "I have medical records ."
Myself:"1
.=C"'
g""'e;::r---'S=-_ __ - "Oh you do?
<:,\o? How d:j.d
d-i-d you get them?"
-'C"'aa:;.;s::..e=-"'
"'s"'e"-"'MMo.;:.a;::n=-a"'
.a"n"'a::.g=e"'r'-'S"---_
"'
Myself:
doctOr, I told my husband
Myself : "When you told me I couldn't call the doctor,
he would have to get them and sen_
d them ."
send
",Cc;a::.:s::..
.:s:.;e::.;..:.:M:;:a:::n
:.:a=-g=e-=r---,S=~_:
:;.g=e",r..,..;S",_=-_ _ :
-=C:.:a
e=-:.:M:::a:::n.::a

"When did you c all him? When did
d id you get them?"

called
Myself: "I cal
l ed Thursday,

(1/20
/11 )
(1 /2 0/11)

I got them yesterday.
yesterday."I'

((1/24/11)
1/24/11)

Be_
a sk themselves is this
th is
Case Manager
Mahager S _.
i;: "Ms K
_
" judges don't
d on ' t ask
pe.rson gonna get cancer
Ci'lncer before they sentence the!ll.
them. YOu are not
n o t a spec ial
ca s·e . I 've got men in the FCI
newboXn babies th at ' ve
v e had five
FC1 who have newborn
fall!ily members die within two years . You are not being realistic
realistic.. There
family
wome n Wi'llking
are si.x ty-year old Wome
walking around this camp with canes . What makes
thous ands of cases in the BOP."
you more special,
special , there are thousands

Myself: "J; didn
d idn "', t say:t
say I was special. IJ; am sorry you are getting angry
Myself:"I
angry..
husl:>an\i was going to die
d.ie you woul-d,
would, do the same._"
same ._"
I f you found out your
you r husband
u_ ' _ :"
That is the reality of prison,
people die,
Case Manager S m
: "That
prison , peo.ple
die , women
lose their children all the time, You are not being realist-ie
re alist-ic.. I am going
gOihg
to end this right here and now.
now . I am go-ing to qeny
d,eny it."

ilding . She went to
Then she a.nd I both walked out of the admin bu
building.
t o h er
~out back from her.
office , but I didn't
didn 't get my cop
cop~out
3

19

2/2/11- I ,,,as
led to camp admin by Case Manager S.
_. She gave me
was cal
called
So
my cop-out back , with a denial from Camp Administrator , Ms.
Ms .
S
, stating submit 'you
you request to the Warden
Warden..
Later tl:lat
d~y I went to open
t1:1at; di;iy
open house and got an informal
resolution. (BP-8) I submitted it on 2/3/11.
2 /3/1 1.
2/6/11- Early Sunday Case Manager S.
called me to her office,
So
\Vas present.
Correctional Officer S,
was
-=C-=a-=s,-,e~M,,-a:;;.n:.::.::a..<g-=e
-r=~s:...-_--,1i : "I
'! I received your BP-8,
BP - 8, is th
i sit?
-=C-=a:.-:s:..:e~M~a::.n:.:.::a",g-=e:.::r,-,S:..,..;,----,this
it?""

Sl:le showed it to me "
She
Myself: lIYes.
"Yes.

n

II

case Manager
ve been
a nager S
",. I just ,.,an
wan t ed to inform you , vle'
we've
listening to yoU'r
statement about
yo\ir 'phone calls and we know your statement
the
t1:1e inoperable tumor is ,not
not true ."
Myself:"xt
."
Myself:"!i: is true
true."
Case
:"On 2/2/11 at 5 : 04pm you were
we'r e recorded
Ca
se Manager S
asking
i ncluding ,
a sking your husband to ,,,rite
write down several questio'ns
questions including,
"Will they be able to
t o shrink it,then operate?, Is it terminal? ,
rognos is?"" If you
y ou already know it is inoperable
What is the pprognosis?
why
w1:1y were
were' you ' asking him to
tq ask the doctor? '"
Myself: "He was going to see
d 1:1im
him to
s ee anothe'r doctor and I wante
wanted
get a second opinion."
isn' t what you said on the phone
Case Manager S; .'.'.. . i : "That isn't
phone,, I
can se'
send
to SIS to hear your call.
n d you over ,to
M;fself
:" I have records that say it is inoperable."
inoper able ."
Myse lf:"I
,

",c:.:a",s::.e"-"'M"'ao.:n"a=-g=e"r'-'S"-_--'
:::....=cM:::a"n:ca::.g=e-=r,-,S,,-_.-'.;' ': '~Wh er
<J e t
:cC::;ao.:s::.e
eree iiss it, I wan t i
it
t now, go ge
t iitt!! ".;
I we n t to my unit to get the
medical, report , then
t1:1e medical
t1:1en returned.
M;fself
"·Why are yyou
ou getting angry?"
Myself:: "·W1:1y
-=C:.;:o",r",r",e=c:.;:t",i:..:o",n=a",l,-,o",f=f",i-=c"e",
. r=-:::s_.....:,
aSk tha t que s ·tion.
·tion . "
",C",o:.:r",r::.e.o..=c--,t:.:i",o",n=a-=l,--,O",f=f-=i"c"e",r=-=s
__,:: "Don't ask
.=C",a:..:s:.-e=-:M=a",n;..:a::.g:!-e=r-"S::.
__ : "Don't go there 'vi
th me,
me , I 'viII
:cc'i:a"s:ce"-.;M~a"n:.:a:o:gil-e=r-,S::.,, _
___
with
\dll show you
wl:lo
am."H
who I am.
I handed her the report
report,, and she flipped through it
it..
-=C-=a:..:s'--e"-'M=a;;.n:..:a'-'g"-e=r-"S'--_~
Who is
-=c-=a:.::s"'
e=--M=a::.n"a:.;g..e=r-'S'-_--'-,. ::, ""Who

i?"

Mysel.f: "My husband . "
Myself:
Case Manager S
:"That's
case
:" That ' s not what your PSI says
says,, how do I
know he's your hu
sband? "
husband?"
My se 1f:"I COUldn ' t get my marriage license to the probation
Myse1f:"I
officer in time for my PSI report, but I had
h a d it sent here .
4

20

~hen
Then

she found my ma~riage license in my file and handed
h~nded me the
medica l report back
back..

"
c~aes"e'-"o!ae'
"a"See'--"o!ea~
"n~a"gce,r,--"S,'n"a"q
"e,r,-"S_ _

_ : "Where does it

~ay

you husband's tumor is inop-a rable?"
rable? "

I found the p.age and read
r ead it to her .
"C~ae,"e,--,MOa""n~a"
g".",'-"S_ __
it
t's
"C"ae'ee,--,M""a,o""
ogC",r,--"S,-_
_ ", : "NO
nNo , I wapt
want t1J.e
tl:Le part
part, that say
sayss i
' s malignant."
malignant. n

Then I read that part to her .
Case Manager 5:
j : "Don
g et
Cas!
1:"
lJo n ' t ge
t smart with
wi th me,
me , I know what
wh at that means ,
II was a medic in the military . "Why didn't
didn ' t you submit these recordr;
with your BP-8 (ipfo rmal resolution)?"

Myself
Mys el f :"
: "I
! was going
gO i ng tto
o submit
submit it 8.10ng
i:l.long with my request
reque s t to tho
the Warden ."
ee
,--"S".".•=.=.="
;,,.:: "Why did you submit
submi t a BP-8
DP-8 anyway,
Ms .
,~c:,a"
c~aesS,e
",-,MOa~n"."gce,r
-M""aen"aeg.e",,r--,s""'"""""""7
.J
anyway I didn ' t Ms.

S
te ll you in her r esponse tto
o your
your cop- out to submit
yyour
our request to the Warden'l
Warden "I ""

,M yself : "Yes,
"Yes , But remember
r:emember l:l
.Myself
a few weeks
week::; ago at open house I was told to
follow
pl.·ocedure, cop-out, t h ~n Bl.'
Bl' - 8,
B, t hen 81:'
B1' - 9?
91 "
fo llow the pl.'ocedure,
Case Manager 5

BP- B.
\ handed me back my BF-

Myself : "So do I submit t his
h i s BP - R with the medical records, or submit my
request to the Warden?"
warden?"
Case Manager!;i
__ _ : "Who run"
run::; th
things
ings aro.u
ar.o.u nd here?,
here? Wh o answered
an swered your
cop-out?,, What did she r;ay? I ' m warning YOll M!':
M~., B
cop-out?
don ' t submit
,'. ""
anything that's
th a t 's not true
true , You heard me tell
t el l her Hr
Mr . S
2/7/11
my DP - 8 wi th the
217/11 - I went to mainl i ne (lunch) and re- submitte d illy
med;i..ual
med.i. ~lal .report
report attached . Later that
t hat day II was called to camp
c amp
J,
admin by Case Mana.ger
adm:in
Manager 5,
1.

""c"a"s,e'-.m"",aenea"9.eer
cOa"s,e"...m""aen"a,g.e
" ,-"
"r-"S,-_
"What is this?" (holding my nF-B)
s,--_ _ : "ii'hat
BP-8)
l>lysel.t:
l>lysel.f : " My B1:'-B
B1:' - 8 with docume.ntation
documentation . IIn
Case
Cage Manager 5
it
It to
t o you again ."
,"

., : ""You
You aren't
aren I t understanding
undertltanding this, let me read

She read to me the
t he reply Ca
mp Adminisrator Ms.
Camp
MS. 5 :' .
gave me on
o n my cop- out
ou t of "submi.t
" submit yyou
o ur
r request
req uest to the Warden
Ward en.h
."
~ysclf
Mysel f :

"Okay,
(request
" Okay, then can I have a BP - 9?"
9?n (re
quest to Warden
warden form)

"C~aes"e
"C"a"See,,--,M""a"n"a"9"e,r,-.
-,M~
a"n"a"g"e~r,-.S,es_ _
__
_ :

""No
No . "

Mysf:l1 f : " Well then
r eq\1~tlt to the Wa;rden?"
Myself
th~n hQw do I submit my req1,lQDt
Wa;rq.en?"

,C
,C"
'i"'2'"c·e""~M".::n,,a
""","e"""M"a::n;;a"<t.e",,r-,,s
,,9".
F"r-,s,, --_
_ _ ., "Figure
" Figure it out,
out ,. you read
r ead the pro~rl'J.m
program
statement . "
statement
Tntp1
Th~n

;r left .,
5

21

2/8/11- I went to mainline, Camp Administrator
Admin istrator Mq.
MR . S'
was present wi th Ass ist
is tant
a nt Warden C. G'
Myself:
r esponding to my cop-ou
cop - ou t . You said in your
Myse l f: "Thank you for responding
th e Warde n, so
reply th at
a t II could submi
submitt my request to the
BP-88?"
?"
does that mean
me<;ln II don't
don ' t have to do a BPAdminis tr ator S
Camp Administrator
J:" Your cop-out served
s erved as
your BP-8
r equest ,
your
BP - 8 , II don ' t have the auth ority to grant your
your request,
it has to go to the Warden. '"
h e beginning th at II needed to do a c op-out,
Myse lf:" I was told in
i n t he
BP-8 , then BP- 9. tasked
, for a BP-9
then BP-8,
t asked 1>Is.
loIs . S
S
BP- 9 but
she wouldn't give it to me . ' II know II can't
submii t my
can ' t subm
requ es t to the Warden
Warde n in a cop-out b ecaus e if he denie
de.nie s
request
it II need to do a BP-10 (regional appea l fo rm). I can 't
go from a cop - out to a BP-10,
wh at do I do?"
BP-1 0 , so what
<'.Io?"
C.
':" A BP-9 is not whiit
C,a mp
rnp Administrator S
what you
-=n'==e"e'
'""'T;:;:h"'e=~r":::e'-'q"u:':e:o.s~t:::"'
"'o"-r"'.---"'c"'o"m"-p~a'=s--:
s"".i'-,. o"n=o::-n=-'· "'
'"a"t-=e
se is a specif
i c ·forrri.
-=n'
e'"'e""'a:i-.
d7-.'-:;;T"h"'e~=r-=e:':q=u
:-:e:::s~t:=-'fio~r=--;c
C:o"'m:::p=a'=sC:s".i"'
a"'t:-:ecc-Relea
-Re 1 ease
spec i fie
'f 0 rrri. "
':,, )
(She verified
v e rifie d th is with A
Myself :"How
: "How do II get thi s form?"
Camp Admini strator
stra t or S·
S'

j:
,:

c ase manager
" From your case
ma nager at

open door ."
. If

op en hou se . My cas e man age r, Ms.
Late r that day , I went to open
Ms . Se
handed me three BP-9 forms.
forms . Not wanting
rm,,
wanti ng to argue about the fo
form
II took the
an<'.l l eft .
ttle BP - 9 's
' s and.
2/22/1 1a dditional documen.
ation
2/22/11
- After receiving additional
docume n,tt at
ion about my husband's
husband ' s
condi t .iQn
ion and a letter
lett$r from his doc to r , II submitted th.
thee BP-9.
2/23/11- II received my BP- 9 back,
r e jected for not having includ ed a
back , rejected
BP-8, wh ich II was told on nUmer
ous oc
oCQassions
that, II di4n't
dion ' t
nUinerous
cass i ons that
nee d .
!l"ed.
BP- 8 , rece i ved it
i t back
back,, foll owe
owed
After this, I submitted a BP-8
d
with a BP-S
BP-9 aDd
ar)d turned
turn$d it into the mai l box, where I had
initia lly Submi
submitted
op-ou t.. I didn't wan t to have any
tte'd my cbop-out
more contact
e ss
con ta ct with staff unl
un le
s s necessary because I was upset
about the wasted ·time
t ime , run around a nd l ies . This BP-9
BP-<) was
als o rej
rejected
nott submi
submitt it through a staff
ect"d b ecau se ' Ir did no'
s taff
member .

6

22

u.s
U.S.. Department of Justice
Fe dera
d era l Bure
Bu r e a u of Pr is ons

Chcnge
Notice

DIRECTIVE AFFECTED: 5050
505 0 . 46
46
CHANGE NOTICE NUMBER: 505
5050
0 . 46
46
DATE:: 5 / 1 9/ 98
DATE

1 . PURPO
PURPOSE
SE AND
AN D SCOPE . To upda te the Pro gram
g r am St
Statement
atement
co n c ern ing Compas
Compa ssi
s i ona t e Rel ease
ea s e;; Pr ocedu
o c edu re
r e s f o r IImp
mp lemen tat ion
io n
of 1 8 U.S. C 3 5 82(
82 (cc ) (1)
(1 ) (A)
(A ) & 420 5( g) .
2 . SUMMARY OF CHANGE S .
Pr
Pr ogram
ogram Obj ec tives h ave
a ve b ee n a dded
dded to
to
Se ct ion 2 o f t he Pr og r a m S ta temen t .
File
l e t hi s Chan
Change
g e Not ice i n fro
f r ont
nt o f tthe
h e Prog ram
3 . ACT ION . Fi
Stateme nt ti tl
t l ed Compa s s io nate
n a te Re lea se
se;; Pr oced
ocedu
u rres
es f or
Impleme
Imp
l e me nta
ntati
ti on o f 18 U. S.
S .C
C 3 582 (c
(c)) (1 ) (A) & 420 5 (g) .

/l s i/
Ka t hl ee
Kathl
e e n M. Haw k
Direc t o r

23

U.S.
u.s. Department of
o f Justice
Federa
~ eder al
l Bu r eau of Pris ons

OPI:
NUMBER:
DATE:
SUBJECT:

Progran
Stal:el11e11t
Staten1el1t

OGC
505 0.
0 . 46
5 / 1 9/98
Compa ss i ona t e Re
Rellease
ease ;
Pro c edu re
r ess f or
Imp l e me ntation
nta tion of 1 8
U . S . C 3 5 82 ((cc)) (1) (A ) &
420 5 (g)

1.
1 . [PURPOSE AND SCOPE §571.60.
§571. 60. Under 18 U.S.C.
U. S. C. 4205(g)
4205 (g),, a
sentencing court, on motion of the Bureau of Prisons , may make an
inmate with a minimum term sentence immediately eligible for
paro le by reducing the minimum term of the sentence to time
served . Under 18 U.S.C. 3582 (c ) (I)
served.
(1) (A),
(A ), a sentencing court, on
on
motion of
o f the Director of
o f the Bureau of Prisons , may reduce the
term of imprisonment of an inmate sentenced under the
Comprehensive Crime Control Act of 1984.
1984 .
The Bureau uses 18 U.S.C.
u.s.c. 4205(g) and 18 U.S.C.
U.S . C. 3582(c) (1) (A) in
particularly extraordinary or
o r c ompelling circumstances which
could not
n o t reasonably have been foreseen by the court at the time
of sentencing.]
CFR
C~R Cr os s Re fe ren c e No te :
[55 72.40 Compassionate release under 18 U.S.C. 4205lal.
[5572.40
18 U.S.C.
U.S . C. 4205(g)
4205{g) was repealed effective November 1 , 1987,
but remains the controlling law for inmates whose offenses
occurred prior to that date
date.. For inmates whose offenses
occurred on or after November 1 , 1987, the applicable
statute is 18 U.S.C. 3582(c) (1)
(1 ) (A).
Procedures for
compassionate release of
o f an inmate under either provision
are contained in 28 CFR part 571, subpart G.]
G. ]

[Bracketed Bold - Rules]
Re gu la r Type - Imp leme nti n g I nf orma ti on
Regu

24

PS 5050.46
5/19/98
Page 2
2. PROGRAM OBJECTIVES.

The expected results of this program are:

a. A motion for a modification of a sentence will be made to
the sentencing court only in particularly extraordinary or
compelling circumstances that could not reasonably have been
foreseen by the court at the time of sentencing.
b.
The public will be protected from undue risk by careful
review of each compassionate release request.
c. Compassionate release motions will be filed with the
sentencing judge in accordance with the statutory requirements of
18 U.S.C. § 3582 (c) (1) (A) or § 5405(g).
3.

DIRECTIVES AFFECTED
a.

Directive Rescinded
PS 5050.44

b.

Compassionate Release: Procedures For
Implementation of 18 U.S.C. 3582 (c) (1) (A)
4205 (g) (1/7/94)

Directives Referenced.

&

None.

c.
Rules cited in this Program Statement are contained in
28 CFR 571.60 through 571.64
d.
Rules referenced in this Program Statement are contained in
28 CFR 542.10 through 542.16 and 572.40
e.

U.S. Code Referenced
Title 18, United States Code, Section 4205(g)
Title 18, United States Code, Section 3582 (c) (1) (A)

4.

STANDARDS REFERENCED.

None.

5.
[INITIATION OF REQUEST - EXTRAORDINARY OR COMPELLING
CIRCUMSTANCES § 571.61

a. A request for a motion under 18 U.S.C. 4205(g) or
3582(c) (1) (A) shall be submitted to the Warden. Ordinarily, the
request shall be in writing, and submitted by the inmate. An
inmate may initiate a request for consideration under 18 U.S.C.
4205(g) or 3582(c) (1) (A) only when there are particularly
extraordinary or compelling circumstances which could not
reasonably have been foreseen by the court at the time of

25

PS 5050.46
5/19/98
Page 3
sentencing. The inmate's request shall at a minimum contain the
following information:
(1)
The extraordinary or compelling circumstances that the
inmate believes warrant consideration.
(2)
Proposed release plans, including where the inmate will
reside, how the inmate will support himself/herself, and, if the
basis for the request involves the inmate's health, information
on where the inmate will receive medical treatment, and how the
inmate will pay for such treatment.
b. The
person on
request.
Office or
where the
6.

Bureau of Prisons processes a request made by another
behalf of an inmate in the same manner as an inmate's
Staff shall refer a request received at the Central
at a Regional Office to the Warden of the institution
inmate is confined.]

[APPROVAL OF REQUEST §571.62.

a. The Bureau of Prisons makes a motion under 18 U.S.C.
4205(g) or 3582(c) (1) (A) only after review of the request by the
Warden, the Regional Director, the General Counsel, and either
the Medical Director for medical referrals or the Assistant
Director, Correctional Programs Division for non-medical
referrals, and with the approval of the Director, Bureau of
Prisons.
(1)
The Warden shall promptly review a request for
consideration under 18 U.S.C. 4205(g) or 3582(c) (1) (A).
If the
Warden, upon an investigation of the request determines that the
request warrants approval, the Warden shall refer the matter in
writing with recommendation to the Regional Director.]
The Warden's referral at a minimum shall include the
following:
(a)
The Warden's written recommendation as well as any
other pertinent written recommendations or comments made by the
staff during the institution review of the request.
(b)
A complete copy of Judgment and Commitment Order or
Judgment in a Criminal Case and sentence computation data.
(c)
A progress report that is not more than 30 days old.
All detainers and/or holds should be resolved prior to the
Warden's submission of a case under 18 U.S.C. § 3582(c) (1) (A) or

26

PS 5050.46
5/19/98
Page 4
4205(g) to the Regional Director.
In the event a pending
charge or detainer cannot be resolved, then an explanation of the
charge or conviction status is needed.

§

(d)
All pertinent medical records if the reason for the
request involves the inmate's health.
Pertinent records shall
include, at a minimum, a Comprehensive Medical Summary by the
attending physician, which should also include an estimate of
life expectancy, and all relevant test results, consultations and
referral reports/opinions.
(e)
The referral packet shall include, when available, a
copy of the Presentence Investigation and Form U.S.A. 792, Report
on Convicted Offender by U.S. Attorney, Custody Classification
form, Notice of Action forms, Probation form 7a, information on
fines, CIM Classification Summary BP-339, and any other
documented information which is pertinent to the request.
In the
absence of a Form U.S.A. 792, the views of the prosecuting
Assistant U.S. Attorney may be solicited and those views should
be made part of the Warden's referral memo.
(f)
If the inmate is subject to the Victim and Witness
Protection Act of 1982 (VWPA), confirmation of notification to
the appropriate victim(s) or witness (es) shall be incorporated
into the Warden's referral. A summary of any comments received
shall be incorporated into the Warden's referral memorandum.
If
the inmate is not subject to the VWPA, a statement to that effect
must be in the Warden's referral memorandum.
(g)
r'or a request under 18 U.S.C. § 3582 (c) (1) (A) when a
term of supervised release follows the term of imprisonment,
confirmation that release plans have been approved by the
appropriate U.S. Probation Office must be included in the
referral.
If the inmate will be released to an area outside the
sentencing district, the U.S. Probation Office assuming
supervision must be contacted.
If no supervision follows the
term of imprisonment, release plans must still be developed.
(h)
The development of release plans shall include, at a
minimum, a place of residence and the method of financial
support, and may require coordination with various segments of
the community, such as hospices, the Department of Veterans
Affairs or veterans groups, Social Security Administration,
welfare agencies, local medical organizations, or the inmate's
family.
(i)
Because there is no final agency decision until the
Director has reviewed the request, staff at any level may not

27

PS 5050.46
5/19/98
Page 5
contact the sentencing judge or
o r solicit the judge's opinion
through other officers of the court.
cou rt.

[(2)
If the Regional Director determines that the request
warrants approval, the Regional Director shall prepare a written
recommendation and refer the matter to the Office of General
Counsel.
(3)
If the General Counsel determines that the request
warrants approval, the General Counsel shall solicit the opinion
of either the Medical Director or the Assistant Director,
Correctional Programs Division depending upon the nature of the
basis for the request. With this opinion, the General Counsel
shall forward the entire matter to the Director, Bureau of
Prisons, for final decision.
(4)
If the Director, Bureau of Prisons, grants a request
under 18 U.S.C. 4205(g) , the Director will contact the U.S.
Attorney in the district in which the inmate was sentenced
regarding moving the sentencing court on behalf of the Bureau of
Prisons to reduce the minimum term of the inmate's sentence to
time served.
If the Director, Bureau of Prisons, grants a
request under 18 U.S.C. 3582(c) (1) (A), the Director will contact
the U.S. Attorney in the district in which the inmate was
sentenced regarding moving the sentencing court on behalf of the
Director of the Bureau of Prisons to reduce the inmate's term of
imprisonment to time served.
b. Upon receipt of notice that the sentencing court has
entered an order granting the motion under 18 U.S.C. 4205(g) , the
Warden of the institution where the inmate is confined shall
schedule the inmate for hearing on the earliest Parole Commission
docket.]
Institution staff shall prepare an amended Sentence Data
Summary for use at this hearing.
Staff shall provide a copy of
the most recent progress report to the Parole Commission.

[Upon receipt of notice that the sentencing court has entered
an order granting the motion under 18 U.S.C. 3582(c) (1) (A), the
Warden of the institution where the inmate is confined shall
release the inmate forthwith.
c.
In the event the basis of the request is the medical
condition of the inmate, staff shall expedite the request at all
levels.]

28

PS 5050.46
5/19/98
Page 6
A request for an expedited review permits the review process to
be expedited, but does not lessen the requirement that the
documentation cited in Section 6.a. (1) above be provided.
7.

[DENIAL OF REQUEST §571.63

a.
When an inmate's request is denied by the Warden or
Regional Director, the disapproving official shall provide the
inmate with a written notice and statement of reasons for the
denial.
The inmate may appeal the denial through the
Administrative Remedy Procedure (28 CFR part 542, subpart B) .
b. When an inmate's request for consideration under
18 U.S.C. 4205(g) or 3582(c) (1) (A) is denied by the General
Counsel, the General Counsel shall provide the inmate with a
written notice and statement of reasons for the denial.
This
denial constitutes a final administrative decision.
c. When the Director, Bureau of Prisons, denies an inmate's
request, the Director shall provide the inmate with a written
notice and statement of reasons for the denial within 20 workdays
after receipt of the referral from the Office of General Counsel.
A denial by the Director constitutes a final administrative
decision.
d.
Because a denial by the General Counselor Director, Bureau
of Prisons, constitutes a final administrative decision, an
inmate may not appeal the denial through the Administrative
Remedy Procedure.]
8.
[INELIGIBLE OFFENDERS §571.64. The Bureau of Prisons has no
authority to initiate a request under 18 U.S.C. 4205(g) or
3582(c) (1) (A) on behalf of state prisoners housed in Bureau of
Prisons facilities or D.C. Code offenders confined in federal
institutions.
The Bureau of Prisons cannot initiate such a
motion on behalf of federal offenders who committed their
offenses prior to November 1, 1987, and received non-parolable
sentences.]

/s/
Kathleen M. Hawk
Director

29

.,
•

U.S. X»epu1JlHDt or Jattfee
CrlminalDivlsion
CrlminalDivWon

July 14. 2006
!.!.

Ricardo H. HInojosa
Tho Honorablo lUeardo
HInojoat.
U,S, Sentencing Couunlssiol1
Chair, U.S.
Couunlssion
Colwnbua Circlo.
One CoIumI>UI
Cirole. NB
Suito 2-500. South Lobby
Suite
WashiDaton, DC 20002·8002

Judge Hinojosa:
Dear Judgo
This letter provides tho coJ).lJ!\.ents
coJXllliet1\l1 of the Department of lua1!ce
lUBt!ce in l'$latIon
~lation 10
polioy
to the poligy
8tatcment
Congress by tho Sentonoing <;:OmmiBsion
statement submitted to Congte88
<;:Omm.ission on
On May 1. 2006, § IB1.13
(RMootion In
ofJmprlsollDlOllt as IlResuit
IlResult of Motion by Director ofBurcau of
ofPrlsollS).
(RMw:tion
in Term
Tenn ofJmprlsollD1ent
Prisons). The
ComnUssion has requested suob
suoh conunc:DII
mtoria and a IJst
list of
ComnUsaion
~" for its dcwelopmcnt of furtbcor mteria
apocille
ofextnwn!inary and compolliDareaaons
compol1iDgreaaons for 8eIl1onco
8eIltonco reduction,
redlWlion, ;\I
a.I provided in28
apociBe examples ofextraonlinary
well sa guldmce
anll Jl)odi1\cations
Jl)odl1ioatiollS to
U.S.C. 994(t). L!I
as weU
guidance regarding tho extont
oxtont of any such reduotion and
supervisoclroJease.
a·term of supervised
IOJeaac.
tho recommendations of.the
of.tbe Departmc:nt
Doparbncnt of1lWioo
In brief,
brief. the
ofJustioo are 88 follows:
foUows:

'The
fHIllteoce under 18 U.S.C.
The specific
&pe4)ific criteria abould
lIhould be to grant a motion for reduction of fHmteoce
3582(c){1){AXi) upon the filing
fiUng of such a motion by
the Depattntent
Dqlattmcnl ofIustice
3582(cXIXAXi)
bythc
ofIusticc basod on a
detennination bythc Bureau ofPrisons 1ha!:
thai:
thfillnm&to
u. sought hu a terminal illness with
tbfillnmato for whom the reduction in sentence "'
ono year or less. or a profolllldJy
profolllldty dobilltating
a liCe tlXpCOtancy
tIXpCOtancy of one
dobilltatlng (physical or
IlDd irremediable and that has
cognitive) medical eondition
condition that is irreversible and
Inmate's ability to attend to 1\mda_tal
tI.Indamental bodily
eliminated or sevmly
sevm:ly limited the inmate's
functions
caro needs without substantial assistanco
i'uJlctions and penonal care
assistance from o!hen;
othert;

a reduction in
in; sentence
app!:Qpriate afto:t
a1\cI:t assessing public safety
aafcty concerns and the
sontonco is appropriate
oU-cumstances; and
totality oiChe
orChe oircumBtance8;
a satisfactoIyrdease
infoxmation about whm the
satisJilctory release plan has been provided including
Including information
inmato willllve and reeeivo
reeeivc medical treatment, and Che
the inmate'8
mC*ll1 of support
IIIpport
inmate
inmato's mean.l
and payD1e11t
payntent for medical care.

llvao faa
30

•

S~ific examples of caBes
08Bes w.man1illg areduotion of BCIltenoO should be oonsistent with the

foregoing criteria.
foresoin&
•

Tho att1O\IIIt
ilDO\IIIt of scntenco reduction and modificatioJ)8 to a term of supervised measc should
be as requested in the govamnel!1"
govamnel!1'. JllOtion.

twill address oach o!these recollUll8lldatl.ons in greater detail below.

THRESHOI.l> BEOUlREMBNT OF OUALIFY!NG MEDICAL CONDITION
The Department of)'ustice and its correctional OOll)ponent, the Burea\1 otl'risons, have used
IS U.S.C. 3582(c)(I){A){I) primarily to sookreductiOJUl ofMl1tence for ~al)yill inmates with
a prognosis (to reasonable medical cert&inty) of death within a~. Tho lcgiJlativc hi$tOry of 18
U.S.C. 3582(c)(I)(A) SUPPOl18 thiG spccitio ground - that of a tenninaIIy ill inmate - 88 an
"oxb'aordlnsly and compB1\ina" cirolllnstance
cinnnnstance that may warrant a reduction in smtenee:
The first
tim "safety valvo" [i.o., current 18 U.S.C. 3582(c)(I)(A)(i)] applies. regardlCM of
ofllio
tho
lensth
lcnsth of $eIltcnce, to the \IIIUSual
\IIIUSual 08Be
caBO in whioh tho defendant' 88 circumstances are so
chansed, BUCh as by terminal i1Inees,
i1InOGS, that it would be iueqllitable to continue tho co!lfincmcnt
of tho prisoner. In such a case. under subsection (Q)(I)(A).
(o)(I)(A). the DIrector of the Bureau of
Prisons could petition the court for a reduction in sentence. and tho court could grant a
reduction if it found that the reduction W1IS justified by "extraordinary and coropelliDa
compolliDa
reasons" and was conslstMt with llpPlicabl0 policy statemonts issued by the Sentencing
Commission.
S. Rep. No. 225,
22S, 98th Cong., 1st Soss. 121 (1983).'

II The cited roport elsewhere noted 88 changed circumatances which tho committee
belleved may warrant a sentence reduction "severo illness" and "oases in which other
lona scntence,H
scntenoe,H
extreordlnaty and compelling cltcumstanoes justify a reduction of an unusually lana
extreordinaty
id. at SS, and stated that subsection (t) [originally subsection. (s)] oflS
of28 U.S.C. 994 "requires
''reqW.res the
(Sentencing)
(SOIltcncing) Cotnmission
Cotnmlssion to descn'be tho 'extraordinary and COMpelling reasons'
ressons' that would
jUBtify a reduction of a partioularly
jUBtlfy
particularly IonS scntonce
sentence impo~ p1lmW1t
p1lm\ll1t to propoSlld 18 U.S.C.
accoxnpanyina
3S82(o)(I)(A)." jd. at 179. However, in the pOrtion of tho roport quoted
C/.uoted In tho accoxnpanylna
text, the roport
report stated that the "safety valvo" oftS U.S.C. 3S82(c)(l)(A)(i) applies '':rcgatdlcsa of
tha length of$elltcnco."
of$elltonco." The Department has
hal ntVetutilized 18 U.S.C. 3S82(oXl)(AXi) au
means
~ ofscoond-gucuing the judgments oftbe
of tho Sentencing
sOIllenoing Conunissjon or sentenoing courts
concerning tho appropriate
appropriAte length of sentences, and does not belil>ve that the policy statements
issu.ed by the CQlllllliBliol1
CQllllIliBliol1 shauld malce the propriety of a reductillll
reduction tum on whether the sentence
is "unusually" or ''particularly'' long, notwithstaJ1dlng
notwithstaJ1ding the scattered and J)Ot partioularly comlstcnt
statements about this which appeared in tho colOlllitteo report.

ptOpo*

·2·

COOIl'J

!)V([O 1'0<1
foa

31

In addition, in a smalllllll!lber ofcasu, thoPcopar\nleotlw;
thoPcopar\nlentlw; SOUihtreductions in~ fur
inmaIea
Inmatea IIIIffcrinB
lIIIfforinB from a profoundly debilit&tini (pb)'Jical or cognilivo) mccI.ica1 condition that iJ
irreversible wi cannot be tcm«Iied
tcm«Iicd tllrougb. m~CJItion or othOl" mCIII\ItM, and that Iw elitnin.""<1
or sev~ly limited the !.>lmata'a ability to aItbnd
aItIInd to jlmdArnenw. bodily functiOl)A and personal care
needs without 8Ubmntial assistanco
assistance from others (including penonaI hygieno
hygleno aDd toUet functions,
bll5ic nwrition, mcdlQaJ ctW, and physical.vafoty), C.f. Id. at $5 (noting belief of committee that
thel'o may be unusual CAIICS in which eventual
oventual reduction of prison term ill jutti1!ed
jutti1!cd by changed
~ including "oms
"oateS ohevero illn_·~;!tlt. Rep, No. 685, looth Cong., 2d SeM, 189
(2002) (''Jimlted authority"
ao!hority" ofcourt wreduce
teduco prison tam
term under I gU,S.C. 3S82(c)(l)(A) OD motion
oftho Bureau ofPrisoIlli "hu been gauet'alty utilizo4 when a defendant sentenced to lmprlaonment
lmprlaomnent
bocom~ tcnnina1Iy U1 or dovclopt
dovelopt a PCIltWIlIClltly
PCIItWIlIClltly inc;apa.citat/JIg
inc;apa.cltat/JIg illooss not prcsetIt at the time of
Stmtencina").
sontencina"). In !he absenccofthcseJDedioal
absenceofthcsoJDcdioal conditiollli as dClCrlbed, requcsta from inm~ to seck
reductions ofthclr sentences under 18 U.S.C. 3S82{o)(I)(A)(i) arc not entertainod.
This
mcessuy to avoid undermining the abolition ofparo1c and the eystem
I)'Btom of
nne limitation
IiIDitation is I1OO06SUY
dotOlll1inato HIlt~
HDt~ pumuwt
purauant to ,ont«wins
,ontoncins guidelines ostablUhed by tho
the SontenoiniRefum1 Act
of 1984. Tho authorityoftho
authorityofthe Bureau ofPrlsom
ofPrlSOtlJ underthe Scnteru:inalUfunn
Scnteru:iDalUfunn Act to BeCk:
Beck reduotiotllJ
reduotiO\llJ
of 40ntcnCB
aontoncB fur oxtraordinary wi oollljlcl1lnS rcasom obvioll5ly -.not
wunot inteIlded by Colli*1
Consreas u a
bllllk door for the
tho rein1roduation
rein1roduatioll of 1\ parole-like catly n1lwc
n11W!c mcoh.nluu, but III
III an element of aII
syetem
sratem whosv
whoso flmdamcntal pl'etJlis6
pl'etJlis6ls
is that prisoners should serve an aohlallern1
aohlallem1 otlmprisolllllernt
otlmprisonmernt
clo~ to thai imposed by the court in sentencin& 8Ubjcct only to very Iimitod
Iimitcd qualUications
qualUicatiollS and
exceptlOIll.

Prltonol' frequmUyaock red\lCtion
rcd\ICtion in their ScmtoncCl.
scmte!lcCl. 'rhe grounda they otret include, for
cxample.lUbscquent good woru,
woW, rehabilitation and good conduct In
in prison. hardahip to thomaolvos
themaolves
andtheirflll)jliesiftheirincarmatlonoOntinues.aIloaod~oftheirscntenccsincompariaQn
andtheirflll)jliesiftheirincarmatlonoOntinues.aIloaod~oftheirscntenccsincompariaon

with thO$$ ~vod by othOl offenders. alleged lIDBoundnCJI or injustice oCtho J1atIIwJ)' penalties
and svnfmQing
senfmQing auldelinoa that put them where they are, pJUt)Orted chauses
changes in societal attitudlll
towarda the criminal conduct in whioh they cngagod, and to on.

To the exteIIt that SUIlh considorations
considoratiollS may wmant a deputIue
depamue &om 1M sont6llce originally
iIlIposedbylhocDurt. thcyllJea1.readyadchesBedihroughcarefu\1yoontrollodanddefinodexccptions.
For example,
exllDlplc. the "aood conduct.. credit of 18 U.S.C. 3624(b)(1) allows progress towards
rchJbilitaUon and good bWvior in prison
priBO!l to be rewarded with ared~on onima mvod -but Iuch
.~onmUBt be earned through "oxemplary OOwplillllClI" with ins\iMiona).
a~onmUBt
instiMiona). rules, and it iu capped
uu amaxilnum reduction ofS4 days per year. The pIOvWoDl
pIOvWolII on8 U.S.C. 3621(e)(2)(B) sinillarIy
authoriu sollleJeduction oftimo served for inmate& who 8Ucooslillll,ycomplele
8Ucooslillllycomplele chug \:IeaIDlent- but
tho reduction cannot
c&IInOl oxcc:od
oxcc:cd a year, and it is not e.vailabl~ to violent offcndeu.
offendeu. 18 U.S.C. 3582(0)(2)
effectivelyalloWJ
effectivelya1!oWJ SI!I!ltence rodw:tiQ)!. based on cban8~ In
in the leriousnose with whioh au offell4e is
viewed - but only
onlY lithe chauge is confinned by the Sentencing
Sentcllcing Commission's lowering of the
applicable
IIpplioable KOltc:nQing range.

·3·

32

.

·
An overly broad reading of the statutoty authority to sedc nxhIotIolIS of sentence for
"~and compelling"
compelling" r6aSOIlS would potentially nullifY
nWlifY all ofth_ ~MIY oonsidered
limitations in existing law on departfng fiom tho 4entcnoo originally imposed by the c:ourt, and the
gon«al aystent
aystem of truth-in·aentcno!n8 they pro\oQ!. Tho Department.of JlI$lico baa accordingly not
taken IS U.S.C. 3S82(cXIXAXi) lIS anopon-endod invitation to socond gueu thelCi\.lativo decision
to abolish parole, to UJ)deiminc the guid4Jinealdetmnirtate .entenoing
.e/IleIloing systom created to repl~ it,
and to revl!it
revisit tho decisions of courts in imposing sont6l1cc.
sont6l1cc, but rather has limited tho use of this
authority to cases ofimpcnding mortality and profound ineapaoitation lIS
lIS deacn'bod above.
So limited, tho Department's \ISO of thl4
thiS authorlty has not conflictod signifioantly with the
principles of certainty and
aud consistency in criminal sanctions which underlie the fedcre1 $entmcill.g
system, and the objectives ofthoso sanctions as set tbrth in 18 U.S.C. 3SS3(aX2).
3553(&)(2). Undcrtho IISIIa1
IIBIIa1
mortality in a year standard.
standard, the
tho inmate's illlprisonment would bo tetltllnated by death within a year
or less in any oyent, so the
tho practical reduotion ofimprisorunent undtt this standard cannot be IIIore
H ng
than a& yoat. Nor are tho sentencing Byitem and irs underlying objcWves undermined by 800
sooHng
reductions of scntenco in rare casos for priSOllm with irreversible,
iITeversiblo, profQundly debilitating medical
medioal
condltiollS, 118
conditiollS,
88 describod above. Such an offender cames his prison in his body and mind, and will
not in any event be living in freedom in any ordinary sonse ifreleased from a CQrrectionAl hospital
facility to be carcd for in some other setting.
Tho policy sta'lomIII1ll1 adopted by the
tho Sentencing CollUlli!sfon
ColIlIlli!sfon for granting motioM UJ)def
undef
18 U.S.C. 3SS2(cXl)(A)(i)
3SS2(c)(1)(A)(i) cannot appropriatelyboanybIQaderthan
appropriatelyboanybIQadorthan tho Department's standards for
filing 8IICh motions. In conlIUt to 18 'U.S.C. 3382(o)(2}, whlch allows sentence roduclioILI basod
on guidcUnea
guidcU008 ohanges on Illation of
oCthe
tho defendant, tho BllmII OfPrilOllS, or tile court, 18 'U.S.C.
3S82(c)(IXA) expreaalyprovidcs
expl'0881yprovidcs thAt the court lllayroduce
lllayroduc8 II sentenco on tho srounds sot forth
Corth in
that provision only on motioD of 1110 Bureau of Prisons. As the concluding language in section
soction
3582(cXIXA) fnd.Ieates, the policy s/atm)ent.
statmlent. iS$lledbythe SentenolniCommluionp\ltllUalltto 28
U.S.C. 994(t) function as a tllrthor
tlJrthor constraint on the
tho court's disc:retion to rcdIIce the 88Iltcnco,
sentenco,
following Bl\lU\toccdont
Bl\lU\tceodont decisioD by the B~ oCPtisons \0 exorcise its discretion to seek such a
~tion. Given tho lcgiflative decision to control the r«iuotion of8Cllt_s for"extraotdinllryand
for"extraotdinaryand
compolling"reason$ by allowing su.chreduclions
su.chroduclions to be conal.dexW only on the initiative ofthe agency
responsible for the inmite's custody, it would be sensclm
&anSelm to issue policy statementaollowing
statements ollowing the
court to grant web motions on II broader basis tIwi the te$Jioll!lole agency will s«.I: them.

At best, suoh an excess of pennissiveno55
pennissiveno5li in tho polioy $tlUem.ent wollld be 1\ dead lotter,
bcoeauso (be Department will not file .motiOIl8 undet 18 U.S.C. 35S2(oXIXAXl)
bcoeall8o
3582(o)(1)(A)(J) outside
outside! of the
tho
~ allowed
ollowed by its own pOlilli~.
pOlici~. At WOl'Bt,
worst, it wollld be an inllitement
incitement to prisonm to filo
moro BUill seddng to compel
compol tho DcparIlnent to exercise its authority undorsootion 3582(cXIXAXi)
3582(cXl)(AXi)
- in contra..entlo.n of its own polillie.,ludgmont,
policie.,ludgmont, and disoretion
disofetion - in orderto get them out ofprison
bofore thoy have served their senteru;o,
sen\eru;oJ as imposed by tho court. At &II minintum, this would waato
the funs
fune and rosomces oCtile courts and the Department in dCliding with morltloss $\Iits
$IIits oflhis type,
coiwoming an lwrc which aimply should nof be open to litigation. The risk aIJo mila! be conWlmd
conWlerod
thaI some courts might be misled by suoh a di8Cl'OP8l1cy
dl8Cl'OP8l1cy betwoon
between the polioy statement and tb

33

Department's standal'ds and practice.
responsibility ~tho
practl.ce. into mlaconstruina
ml.aconstruins tho aaaigwnent
aaaignntel1t of
ofresponsibilityllll4ertho
statute
and Dilgbt
might then enjoin
onjoin the Departmenl
Department to seek IlICh
etahlte for seeking ledUcUona
reducUOJ1I of 14m'moo, 8IId
such
mblctions
pmllissive 1WIdan:b.
oecUIICd, tho I'CfIIlt
DIIll
n::dW:tions under more pormissive
1U1Idards. If this oecUlICd,
I'CIlI!t would be exac:tly
exac:tJy the evil
undermining of tho abolition of pllZOte
puolc and de\onninaIo
dc\orminaIo sentencing
- the undcnnininS
sontcnclng - that Congress
Congross sought to
seek teductions
reductions of Jentenco
tbt prisoners under section
avoid by veating exclusive authority to scelc
Jentencc tM
3S82(c)(1)(A)(i) in the exocutive
IIgCllC)' responsible for their custody.
3S82(c)(1)(A)(I)
executive lIgc=J'te$pOnaible

.4m'-.

We also reject the
tho arsumcnt
argument that tho Commission
CommIssion should adopt 1IlO1'O
IlI01'O pel'Qlisaivll
pennlsaivo standanIs
for reduction ot'sentence
ofsentenee based on certaJu
faotors mentioned in tho United States Attom8)'ll
certahJ faotod
Attom&yll Manual
(USAM § 1·2.113) - "disparity or unduo sevaity
severity of sentence,
sontence, critical illness or old age, and
iovemmont" -wblch
decldln,g wbetherto
mClritorious mv.Ico
mv.ico rmdered to the &,ovennnent"
-which may be considared in dtcidin,g
wbotherto
IeCOIDlIlOlld that the l>resident
_teuco. 1'he
the Manual does not ltat<> Ihat any of these
IeCOlMlend
l'resident commute a sonteuco.
factors in isolation iJ
is a sufficient basis forrccommendlnacommutation.
Iilnplynotctlhat
factod
forrccommendingcommutation. Ralha',
Rather, it lilnplynotcs
that
appropriato JIIOunds
OO!DIIlutation h4vo tradltionally
thoso mentioned, and
pounds for colllidwg
considering OO!IIIllutation
traditionally Included those
stales that "a
"8 combination oftheso [&eton]
states
[&cton] and/or other equitable factors" mayprovido a buis fot
fo~
recommending coll1\)lutation
thcoontexl of8apart!.ou1arcaso.
parti.ou1ar caso. Sinceoommutation
amatter
coll1Olutation in thcooutext
SincecoDtDlutation is purely atnatt«
exOCUlivo grace,Rfcrring
of execulivo
grace. roferring to a range offactoIB
offactors that may be
bo coWiIc1ezed
coWildeted in theDopartment'a
the Department's internal
intema1
gl)idanoe regardins
regardinB executive clemen!)y
clemenClY entails no risk that prisoners will have any measure
guidance
meuuro of
issues, in an offort to persuado
courta to
~ in IIttIImp1ing
IItternp1ing to tum these referen.cos
references mlo litiJ:abls
litlj:able issues.
persuade eourts
Department to sock
seek their Rlease
ita judgment. as
tho Commission'.
Commission's
compel tho DIlpartment
release aga1nat
aglli1lat its
u may occur if
ifth&
poliClY
tho
polll))' statements RIatin&'
rolatin&' to judiolal rodIwtIon
roduotIon oisentence
ofsontence are moropenniBslvo
moropenniaslvo than the poHcies the
auchrcduetioWi. More basically, thcdeclsioD
thcdeclsi~n to !how
mercy anel
Department has adoptedfor 8M'Ii
8MDi auchrcduclions.
MOW mercyand
OOlDJllute
PresIdent, whioh
which by its
commuto a prisoner's sentence is a8 power ~ed bylbe
by the Constitution to tho President,
D.IIture
faotors that may be colilidercd In
nature is boundless in its legal scope and
wd In
in tho (actors
in ita
Ita exercise, but
limited in
In ita
its practical operation given \he need for a ponwnal
ChIef
also extremely 1lntited
personal decision by tho
the Cbief
U.S.C. 3S82(c)(IXA)(i)
Executivo. Tbe Department has not rogWod
rcgWod 18
18l.1.S.C,
3S82(c)(I)(A)(i) as a baelrdoor method
metbocl to
from tho President through tho establiJhed
establlahcod process,
procoss, and
obtain clemency without baving to seek
seck it 1iom.
It Ihould not be 80 rcgarded/JI.
regarded In the
Commission's formulation ofpoHoystatemonta
ralatina to judicial
tha Conunisslon'e
oCpoHoy8tatemonts relatina
granting of the Department's
Department·s motions undet
under that provision.
CONSIDBRATION
RRLBVANr ClRCUMSTANCIiS
CONSIDBRATIQN OF PUBUC SAFBTY
SAFETy AND 0JlffiR
OTImR RHLB\TANT
ClRCUMSTANCIIS
The medical ,riteria
~riteria dosM'bed
doscn'bod above ere
tbreahold rcquiremOllt
ths Depa.rtmmt',
'l'he
ore a Ihreahold
requirement for the
Depatfme:nt',
seekins: a reduction of sentenee.
SOIIteoee. If this tIucIhold
COIIBidcnuion of soeldni
thrcIhold requirement 18 satidlod,
satidled, the
considmtion
BuroauofPrisons carefully asseiKS
ofths
BurcauofPrisons
assei80S the public safety conooms and the
\hO totality of
tho circumstances
circutnstw:ca
(inoludlng
imp8C)\ of a l1Iduction
acntence on any victhna).
(inolllCl.lng the
tho impact
reduction of sentence
victhns). Tho Bureau may find thot
thet the
tho
inmate
lIkoly to pose a danaor
danaOl'to
inmalA il
is not likely
to tho public or tho
the community ifRIeased,
ifrcleased, and that the other
objoctives of criminallllll1otions
as condnoment,
criminal sanctions - such 15
con/!nenlent, punishment, and rehabilitation - are no
longer principal considerations.
consielerations. Viowini
Viowlni tho totality oflhe oIrcUrnstancos,
oil'cumstauces, it m.aybe
maybe concluded
ooncluded \hat
that
extraordinary
\hat warrant aQ rcdue1ion
rodue1ion of sentence.
extrao~ary and oompo11ln8
compo11ln8 olrcumstances exist
Oldst that

In this cOlUlcctiOn,
cOlUlcotiOn, it should be noted that the policy statement submitted
IlUbmitwd to Congress by the
U.S ,c.
Sentencing Commission
Commis4lon is at odds in ono respect with the statute, in that it refers 10
to 18 U.S.C.
·534

providlJl3 criteria for 111''''''8
1I1... .!"8 dangerouanoas
axu1 f1ijht!ll,k In tho toIItat
toQtext of
314200 - a sUtu10
lrtaMe provid!nB
dangeroll8llOH alId
pretrial rel_ - II the basil
asmrins dangCll'O\1IIIl&!I1n
dangClrO\1IIIe&! In relation 10 redu4;1ions
oC~.
In
bull for as.mins
reduc;1ions or
tentcoce. m
thIlllatuUt
IpJIllc:a olllY
oQ\y to sootlmi'
sootlcm.' 3582(c)(IXA)(ii),
~ IlatuUt ltult,
ltult. this ref~ applic:a
3582{c)(IXA)(ii), a ptOviaion Incorpore!lng
IncotpOra1i"8
variOIll specIt1c
ICNt 70 yecs
yeIl8 old.
various
spoclt1c limitations, Including
~ludIng roquItemenIs
rcquItemenls tha1
that the dofondJnt
dofclodJnt muat Nit lcelt
old,
mUll liave served at iCMt 30 years in prillOl!, and must b4I doina time undor a _!cIIco imposed UIUIcor
mUltliavosarvcdaticast30ycarsinjlrllOI!,andmUltbedoingtimeunderasenlcllcoimposedundcor
tho policy
ttat_ent II1akea
makea the wne ptOvWon reprdlna the
18 U.S.C. 3559(0).
3559(0), In 001lIWt,
ool1IWt, the
polley ltatemtmi
dole.rminalion ofnon-daogerollillOlilpJliyu
roducIIons of801lteru:c
ofSOllteru:c 1lO\I8II1
cx1rIO.rdinuy
dolem!lnslion
ofnon-dangeroUillOliapp\yu well to rocIuetIons
JIOl18h1 fur
fur~
COIX)peUing reuooa \lllder
\lllde1scction
3582(0)(1)(11.)(1).
and compelling
section 3582(oX1XA)(\).

The application of 18 U.S.C. 3142(s)
daniorousnessin
IhoportThe:
314200 to detmninstiOIl!
dotmninatiOIl! rclatingto
rclati.ngto daniorousnesa
in lheportconvictloa.
wiU pmW
prmnt d!ffie\lltlea
_ it include.
fe1tUre5 whleh
collvictioD. rcductJ.on-in·scmtel1cc context wlU
4!ffie\lltleab
bCOlillSe
inoludo. foaturQ
whlcl1
pruuppolO the p~al
boc:auae it mllfea
mbi:ea IOgotber
pruuppoao
prttrlal release contoxt,
co~ and becau&e
togotber faotoll re\CYlIIII
relGYllllt to
4angeroumesa with I'a¢tors
relevant to risk of flight
rujht or IIOlIipPcsrance.
c\angerollln6S8
fa¢tors felovant
~earanee. As II practica1 matter,thcao
i68llea will not have to be ~ for ~dos in relation to section 3S82(oXl)(AXii),
ill8llea
3S82(o)(l}(AXii), aivenltll
liven ill
th.e inmat~ mUlt
10llSt 30 yoar.
you. of a .~tenee
I~tenee UD6er
UDder the SWU10ry
mlllt h.ve BervccI
served at 10IISt
sW11Ioly
requimnent that 1M
''tbmIstrlkes''
provisioo. But lhere
there I,
no RUOIl
RUOII to bring them into play in reletion to reducliona
''tbmI strikes" provision.
11110
redUCUoIll of
senteou
under
Bcolion
3582(c)(I)(A)(i),
As
noted,
publio
ufeIy
oou<:emI
and
potentit1
sentenu UIIde:r scotion 3582(v)(l)(AXi).
CO~
dlllgOIOllme88
reduction
d~ of an inmato
Inmato lilt
m fnlly considcrod
considercd by the
th& Bureau ofPriIOll!
ofPriJOnl before auch a lCduction
If
stiplllltlDg that 1M
th.e Itandards
oftS8 U.S.C. 3142(s)
if .ouglrt, and there
thoro is no bon~t 111 stiplllNing
IIIandards oft
3142(a) 'Ill'ly
'!l1Ily to such
u,cstmenta,
BlalUte itself
dooa lIot znak<:
makI: them 'Ill'licablo.
wrong to
u ........enb, wbllte
wllMe the BlalUIe
i~lfdoa
'!l1Ilicablo. It
II would ccrtainIybo
certainly be 'MOOg
equate I)Ie
matters In
relJllon to reduetions
reductions of58lltence
58t!tence for ex1raOrdinaly
oxtraordinaly
tile Inquiries concemlni
concemJns these matten
in ret.tlon
aJId compeDing
compoDing reasons with 1M
comspollding InqWy concerning
toIICeming daugmolUUlCU
daugtllOlI&IlCIt In
and
th.e corrcspolldina
in relation to
pretrial fdcase.
fclease. A ddaldant bofore
before trial hI5
not been prcV/lIl
pl'C>ven guilty oftho eharpd
offi:lllo, l1li41.
pJdrial
hI6 1I0t
eharged offwlo,
and i.
81Ibjcct
dctc:ntlcm only
OJIly lIpOlI clear proof that no toIeaso
relcaso eooditiollS
protoct the
81Ibjoc;t to dctQjllon
cooditiollS will adequately
adoquale1y plotcct
public.
adefendlUll for whom arccluction
hu bCCIII convicted,
publio. In COI!1raat,
COI!1raIt, "defendlUll
arcductlon of sonU:nee
len~~ is sought las
convlctod, and
tho stroD$
preIIIIDPI!OIl must be !hit
that he i.
il 10
RlVO the
these
Btron$ pt1IIIIIllPt!OIl
to SQVO
tho UIl~
sen~ imposed by th.e
tho court. In II1cao
olrollms~.
earlyrclcaseshould not bo<XKl8idercd
thcrcb.a high
bijh ~ee otconfid_1hat
otconfidenu that
o1rcllms~, earlyrclcueshculd
bocoosldoted llIJleSi
lIDIeSi tharcb
~ will be no resulting
dtIlaer to tho publi<l.
there
rcsuIting dqer
.

Hence, In
statemlll1t In
crolS roferenco
roference to
in finaliz/ni
fInaIizina or modlfyJ.ng the policy
polity statement
in th~ future, the cross
ltenoc,
dett:nninins
011 tho bull
dett:nnininB JIOIl-dengmoumesc
JIOn-denproumess 0111110
blllia of !be standardI
standacd6 of 18 U.S.C. 314200 ehollld be
~ccI to section 3S82(c}(I)(A}(U),
3S82(c)(1)(A}(Il), .. tho statuto
COI1f\ned
etatuto provides.

PLAN lOR
FOR Bm.RASE
PLAN
RV.RASB
fuJal element in tho Department', ~0II1
~onl of an Inmate for the appropriaten"""
IIpjlropnaten .... oft.
Tho filial
rcductiOIl
hla
reduDtiOIl in scnte!lce
senle!Jce is ensuring that ad"'l~ provillon
provlJdon hU been made furtbelnnwofollowlDs
fur tho Jnm.tcfollowill,g hls
releaac.
inmate. or thosa
behalf; are
~ aooordJngly
provide a
reloaac. Tho inmate,
those seeking release all
OD hit behaI1:
IIOOOrdlngly required
requmd to proYi\kl

proposod :rclcaso
medical
proposed
relcaso plan. lnoluding
lnoJuding information e.bout
lIbout where the inmate
imn 'Ie wiI1live
will live IUld re«ivc
receive mediCI!
trwmvnt, 1114
bis means of IIIIJlP<lrt
~ p.yment
rOt medical
cere.
.
treall!lllllt.
m4 about his
IIIIJlPOrt IIIlIi
p..ym.cnl for
mcdl.ca1 care.

.635

EXTENT OF RRI}UCTIQN AND
ANQ SIlPE&VlSBP
SIlPER.VlSBP RW,BASB
The Commission's solicitation ofcommentsrefmect speoificallyto "guidance rqpmIlngthe
~tofany8UOhroductionandmodificalioDBtoatermofsupetVisedreleaso." Asdiscussodabove,
before seelring
aeelring II reduction of~tonce, the Bureau of Prisons will have detmninedwith reuonablo
rouonablo
medlea1 cmUlntythat th.. inmate i8 tarminallyill
tmminallyill with a prognosis ofdeath within a year, or SUffOl8

ftomaprofo\llldlydebllitaliDgmedioaiconditionasdelctlbed. ThoBureauofPrisonswillalsobave
carofully considered publio safety conCCl'lli and all other relevant
re1evant oirounmances In detetmining
wh~ct !Wlh II
wh~er
II rMuction is appropriate. A release plan will b.&.ve ~ submitted relating to the
thlt
inmate's means ofsupport and OIlnJ following hii
hi5 release, and the aureau ofPrlsons
ofPrlSOllS will be IIWsro
aware
of any timin8 or logistical considerations relating to transf'mini the Wnate from correctional
confinement to care and treatment in some other scttina. In lisht of the foregoing, it would be
appropriate for tho court to accept the Department's recommendation in its motion regarding the
extent of tho reduction of sentence - i.e., the timing of the inmate's release.

Similar col1$iderations apply to "modifioationa to II term of supmvillld release." The
authorltyoCthe court to ''iJnpose IIII term ofprobation or supervised release with or without conditiOllJ
that does not IllCceed the unsOlVed portion of the original term of imprisonment" as part of a
reduction ot'sentenceundor 18 U.S.C. 3S82(o){1){AXi) was added in 2002 by § 3006 ofPub. L. 107273. The conference committee RpOrt oxplaincd:
lIuthorlty on courts
courta under seolion 3S82(o)(1)(A). When
exmising
exorcising the power
powor to reduco a tenn of imprisonment for extraordinary and compelling
roUOlU, to impose a sentence of probation or sup~sed rcl_ with or without conditions.

This scotion would confer
confor Ill(presB

SIIChad4edfiexlbilitylsconslstcntwiththepUl}lQlC$Corwhichthesl8tUtewasdcslgnedand
SIICh ad4ed fiexlbilityls consistent with the pUl}lQlC$ for which the stetute was designed and
will likely facj,lItstc its usc in approprl81e oasea.
Under 18 U.S.C. 3S82(cXIXA), It court is authorized, on motion of the :Bureau
l:Iumu of Prisons
and consiltont with tho purposes of sentencing in 18 U.S.C. 3553. to "reduce tho term
tem1 of
imprisonm=nt" upon II findiDa that "extraordinary and oompolling I'OIIIOIl$"
rouons" WlIl'rIInt
warrant suoh a
reduction. This limited authority has been. generally utilized when IIII defendant aentenccd to
imprisonment bccomC$ tonninally ill or develops a permanently iootpacitating illn,," not
present at the time ofsentcncins, Insuchcircutn$tanees, tho situalion
situation ofaprisonor
ofaprisoner (e.g., one
suffering from a contagious debilitating diseaso),
~), may make a court reluctant simply
aimply to
releaso the prisoner
release
prlsonor back into society unless another
anothor sentencing option 5UCh as home
confinement as a condition of supcrvi.ed
supcrvilCd rclcasc or probation can be Imposed. Prcsontly,
Presently,
however, itis doubt.l\Jl whether acourt can ordorsuch asentonce
a sentonce since !eotion 3S82(cXIXA)
speaks only In terms of reducing "the
"tho term of imprisonment." not imposing in its stead a
1,,"& type of sentence. C£ Fed. R. Crim. P. 35(b), which gives a court the power
powor to "reduce
a .entellce"
aentellce" to renec(
renee( substantial assistance. The proposed language alISO makes it olear that
anyuowtenn
anyDfiWterm ofsup~ release or probation cannot be lonserthan tho unserved portion
of the original prison term. 1\8 it is not intended that this provision be used to Increase the
total amollnt oftimc that II person's
persoo's liberty is restricted..
-736

H.R.ltep. No. 68S, l07th Cong., 2d Sess. 189·90 (2002).
.As the conunlttee report indicates, the 8llthorityto impose a period ofsupeI"i$lon
supeIVi$lon and tenns
o{aupervision
ofaupervision 'Ulldcr 18 U.S.C. 3S82{oXIXAXI) provides a moana ofrespondina to ~ concerns,
and pm!cuIarly publlo safety concems. raised by the reloasc of the Inmate from a comctIQtI81
faoility, IIIch as controlling tho rlek to others from an offender with a conbiioul conditiolL .As
diSCll8Kd above, the Bureau ofPri8Ol1!l will have IW8e$Sed the inmate's medical condition and any
public safety concerns related to the inmate'sre1ease before tho dmon
decieion is made to seok al'1!duction
al"1!duction
of mltenco. If conCOl1lJl ofthiJ type cannot be adequately addressed, then the Depaibnent will not
seck arcduction of 68Iltence. Ifsuch concerns can be adequately addressed throu&b an appropriate
term ofsupezviJion
ofsupetviJion and conditions of~on, the Deputment will pIOpOSIj such conditions in
its motion. AJJ with the timing of rel_, it would be appropriate for the court to accept the
Deputment's recommendation inils motion coneetnin8
conee;rning these 1IIlIItc!n.

SPECIFIC UAMPLES

Any specifio examples provided concerning
conccmlng oxtJaordinary and compelling reasons for
sentence reduction should be consistent with the prinoipll:lS (\ec¢n'bed
decen'bed above. We would suggest

speeltlcally the following:
Example 1: An ofl'ellderis sentenced
sentenoed to three years ofimpri80nment
ofimprisonment forinoometsx
for income tax cvMion. After
youlI of the tenn, he is diagnosed
diagnose(! with metastatio cancer, with a life ~cy (to
serving two YOUlI
~onablemedical cmainty) ofless than a year. The Bureau ofPrisons' reviuw ofthe case indicates
that thero
thcro Is no realistio conc«n that the inmate will be a danger to others, or that the PWPOSCB
pwposes of
crimina1 sanctions will otherwise
othcrwiso be se.riomly dlsserved,
disserved, utile inmate is relCSlled,
relC8lled, oonsidering his
I*8Onaihistory, thenahtte
thonahtto ofthe off=, hi, current condition, and sll
all otherrelcvantcirO\lI!lStances.
Viotim impact conccms are not deemed to countervail beeeu$ethe offense lacks anindividual victim
Viotimimpactconccmsarenotdeemedtocounterva!lbeeeu$etheoffenselacksanindividualvictim
and the inmate has satisfied the tax liability to the best of hie ability. The inmate has made
arrangements forhospico oare to commence immlldlateIy
immlldlatelY following hi. Rl_
Rloa.se and to continue until
his
~ death, and has IlUbmittcd
submitted asatisfl!cl.oryreleueplan to that effect. Areductloll msentence to time
served could appropriately be allowed under tho oircUlIlltmces.
Example 2: Anofl'endor
Anoffender is sentenced to five yoars ofimprlsonmcnt for a drug offense. After scrvlng
three years oltho term, the inmate attempts to kill bimscl£
bimsel£ The suicido attempt is unB\ICOcssful,
unBUCOcssful, but
results in JeVere brain dunsgc.
dsmsgc. This reduces the inmate's mentality to that of a thrce-ycar-old,
it roBnlta
irreversibly and immledWlly, which largelY
JugeIy eliminates his ability to attend to timdamcntal
timdamental bodily
functiom iIIId personal care necd$ without substsntlal assistance
assistanoe from othere.
others. The facts re1ating to
the ~'B medical condition, ita
its consequences, and its permanent character are confirmed with
reasonablemedioal oerta/ntybyBurcauofPrisonsmedical
oertalntybyBurcauofPrisonsmedical personnel or aBurcau·sclcoted
aBurcau·sclcotcd consulting
physician. The Bureau ofPri$OllS
ofPri$Oll5 detcnnincs
Iletcnnincs that the inmate is no potential danger to anyone
anyono and
incspablo offurlher
of further criminality collSidering his condition and all relevant oitcum8tencos. and that
a reduction of sentence
sentmoe is warral:Ited.
warral:Itcd. Victim impact concerns are not deemed to countervail
because thoro is no identifiable: victim of
ofthc
the offense
offcnso who would be endangered or asgricved by the
·8·
37

inmate's release.
aubmltted which shows that ~ jJlmate's
jllmate's family
releaso. A $!ltlsfllCtoty
$!ltlsf!lC1oty teleaao
releaao plan is submitted
Camily is
willing 8IId
re5pOIIalblllty for his QMI on
OD a permanent basis. AlIowillg
and able to a8IUIIlO
a8IUI1IO respo.aalbillty
AIIowitlg a reduclioa
reductiOIl
of tho smtonce
Irote:llCe to time served would be 8pplopdate
applopliate under the olreuntBtanus.
elrountBtances.
the authority to .ookreductiOll4
.oekreductiOll4 ofBeI1lal(:e
OfBeIl~ for
extrao.rdlllAl)' and compeJling!'ejl8OflS
COII\POlliDg!'ell8ODB
lD fWtl,
swn, thuuthorityto
forextrao.rdlllAlY
VClited by law in the BUIcau
OfPiiIlODS. Properlyexctoiscd.
thi8 authority allows an appropIiate
appropIiato
is vClitcd
Bu!cau ofPiUona.
Properlyexotcised, this
offendote who II1'lI
measure of compauion
compusion to be shown to offendete
Bl'Il mortally ill or profoundly debilitated,
without uruienninjDIl
objcetiv~ ofcrimlna1 sanatloDS
dot«Dllnate
undcrminjnll tho objeetivCII
sanotJODS and ~ mtegrityoCthe
wtegrityofthe federal dot«mlnata
sentcnoiJlg system. Policy statements
stslmlcnl$ adopted forthe
torthe courts'
sentenoing
coUIts' gnmting ofsuch I1lOtiOll8 will similarly
be sound. productive, 8IId
and free of o1l'scttini
offsettin& coats
costs if formulated m
in a 1I1IIIIIle;r
consiatent with the
II1IIIII1I1f eon.siatent
Justice Pepll11ment's
tor thls
~bed In
Depllllment's statutoI)'
statutoX)' role and the policiCi
policiCli it has adopted for
this PUIpOSe,
P11IpOSe, as cWetibed
\hie
lotter.
\billettill'.
this opportunity to provido tho Colllll)ission
Comm.isslon with the vi~ comments,
an.4
Thank you for Ibis
oommenll. and
suggestions
Ju.s1ice. We look forward to COIltinumg
SUsgestiOIlS of the Department of Ju.stice.
COIltilluing to worlc with the
Conunis4lon to improve the federsl
federal sentencing
sentenomg guidelines.
Conuniulon

SmOClllly,
SWC8lllly.

~f:1:L~(Q
:i:f:1:L
~(Q
Senior Counsel to the
j~t Attorney General
Gallnl
A..i~t

-938

RESPONSE TO REQUEST FOR REDUCTION IN SENTENCE CONSIDERATION

Smith, Phillip
Reg.
Reg. No. 65072-065
Healthcare UniUF-4
UnitlF-4
Based on your request, your case was reviewed for possible reduction in sentence due
to your medical situation
situation.. The Bioethics Committee reviews all such requests to
determine if your situation 'meets
meets the criteria set forth by the Bureau of Prisons in
Release: Procedures for Implementation
Program Statement 5050.46, Compassionate Release;
U.S,C. 3582 (c)(1 )(A) & 4205 (g), dated May 19, 1998. Specific areas the
of 18 U.S.C.
committee must address include: your total medical condition and the impact it has on
your incarceration; was the court aware of your medical condition when you were
sentenced;; your criminal background including instances of violence and/or use of
sentenced
weapons; and the safety of the community should you be released early.
The Bioethics Committee previously met and discussed your case in October 2011 and
you were denied at that time. Your case was reviewed again and while your medical
condition ,
condition is very poor your criminal history outweighs your medical condition.
Based on the above assessment, the Bioethics Committee finds you are not
appropriate for Reduction in Sentence (Compassionate Release) because your criminal
history supersedes your medical condition.
If you are not satisfied with this decision, you may appeal to the Warden through the
Administrative Remedy Process within 20 days of receiving this notice. Your counselor
or case manager will assist you with directions and appropriate forms if you request
them .

&::o11
t(~!("rit(tte, Ch,i~"""
~~titt,~~~m.'"
Ch,(rp,moo

39

February 3;-2012
3;-2tl 12

COpy
_~!(M.
~
~~I(M~
lb
- '/...l-(t -11:>-Z-I-11

.N~-....-.(
-~
P"-'-'.

~".~~

U.S. Department
Departmant of Justice _ u ......
..... ·f,,·<.;..Ii\.,.
·.. ..;.. li\..-H--..T-Federal
Federa! Bureau of Prisons
Federal
Conecliollai Complex
COIJiplex
Fe.
d erel Con-eclionol
Federal Medicel
Cellter
Medica! Ce/lter

-- -- .---

D.l\TE:
D.lI. TE:

P.O,
P.O. Box 1&)0
150l]
Sutnsr,
Butner, Me
NC 27509

----_._-------- ---------- -

September 27,
27,2011
2011

REPLY TO
ATTN OF:

Sara M . Revell. Complex Warden

SUBJECT:

Reduction in Sentence

~
.
--.

·TO:
' TO:

~42

on
On August 5, 2011, the Reduction in Sentence COnlm!!fYe
COn1mi!!fe met 10
to review your request
for
tor reduction in sentence. j he commlHee
corrmlttee reviewed your history and other sources of
collatera! information.
collateral
.
The medical team provided information aboUt
about your medical condition. including
information about the course,
course. treatment and severity of your illness. You have a
edical hist(ilY
history significant for C5-C7 spinal stenosis which has left you partially
paralyzed and.
and bedrid.den
bedrid.den at th~s
this time requiring skilled
skilled nu:sing
nursing care. hypertension.
hyperten ~ion.
paralyzed
anemia, dlaberes,
.
diabetes. hypothyroidism, and cilronlc
chronic. CQnstlpation.
ccnstipation.

t§
I;

You were housed in the complex uriP!
until May 2011,
201.1, when you required more assistance, and
·the fMC.
FMC. You are currently housed on the inpatient unit and rrequire
were moved to the
equire total
dressing, toileling,
assistance with bathing, dressing.
loileting, and all transfers.
transfers. YOu
YOLI have a baclofen pump which
Is
[s used for pain control,
control. though you rema!n
remain mostly bedridden as you are t!flable
unable to tolerate
.
sitting up or being out
lhe bed for an extended time. Due to the overall .des;]jnlLll
de.!<!i.lJe ir YQ.Ui
YQ.ur
o ut of rhe
condition,
or reduction in sentence
condition , it is felt that
thai you are an appropriate candidate T
for
consideration. .
-~=: •
•

=--_.

.......
-.... ~ -------'-

-

----

The case manager provided a review of the material contained in your Presentence .
Investiaation Report (PSI) and discussed your institutional adjustment
Investigation
adjustment. You are a LOW
. security
securitY level inmale
inmate with IN custody. You were convicted of Sexually Exploiting a
Minor by Producing
ProducingSexualiy
Sexually Explicit Visual Mat.erials
Materials and Possession of Child
Pornography and are serving a 240 month sentence Willl
Wilfl five ye.ars'
ye.ars' supervisee!
supervised release.
You have received
_o,ur
receiVed no incident reports during your incarceration. P-.ccorCling
P.ccording tq.;'
tq YOllf
Presentence
Presentence InVestigation
Inv.;>stigation Report (PSI), you have no
flO prior crintnal
cfin~nal hjsto£Y.
~istOfy'.

- ...... ........

-----~~

.

'

--- ._-_._.._.........-.--.-.----

-..-.-.------.--~- .--

'f, !I I' "j "..-

40

-

_... -' .-- ..~ .--.,

The medical social worker re~lewed
re~iewed your proposed release plan
plan._ The social worker
explained your support system consists of your wife
,
Through a
wife,
telephone interview, :
act as your caretaker. She'
Shereported a willingness to ael
Indicated
you would receive appropriate medit.al
care, and jnare(js)}rued'!ldicated she
she_would
~ld insure
Insur~.i'~_~.
medir.a.L£?re,
tiow thecarewoula1ie
how
the care would1le flriancea.----'."
... ---- "~- ... , _.---- .

-_ ----

financed.

----

--------

'9-

Committee Recommendation
Recommendatlol1
';;
'
Overall
Ov er-ali findings indicate
indIcate your medical cond,
condilion
ilion is serious. However,
Howeller, the Committee
recommends
deniaJ.gf lID! 1u:eQ.l.J.Qst for reduelion
recOllllne~L!eJ:W.Qst
reduction In sentence dlle
dtlp. 10 the nature of yetlr
yOlJf
imposed.
offense
and
and
the
length
of
sentence
imposed
.
r
.
_

..-

-

.

J
---"

Warden's Decision
DeciSion

~ ('£11.r
f'£l\~
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•.
,
.•

41

. . Department of Justice
ederal Bureau of Prisons
FCC Butner
.

~

Request for Administrative Remedy
Part B - Response

This is in response to your Request for Administrative Remedy received 04-06-2012, wherein you
request a compassionate release, and for a motion to be made to the Dlstnct
District Cour(
CourC Eastern
District oj
Q.f Michigan to reduce your sentence to time served.
served .
A review of your case indicates your family requested, via a phone call, April 01. 2011, for you to be
considered for Reduction in Sentence (RIS), also. known as "Compassionate Release." Social
Work requested a medical review of your case and you were deemed not medically appropriate for
_. RIS consideration 04-05-2011 due predominantly to your positive response to chemotherapies and
also given your disease condition was stable.
stable. The medical recommendation was to re-visit your
case in 3 inonths to re-assess for medical appropriateness. On April 18,
18, 2011, you made a second
st
request for consideration of RIS, however your case was already being processed from the April 1
contact. Your medical appropriateness was re-visited May 10,
10, 2011 with the determination you
were not medically appropriate for RIS consideration , and a recommendation was made to re·visit
re-visit
your case again in 3 months. Your medical appropriateness re-visited
re -vis ited a th
third
ird time for RIS
consideration August 2, 2011 with a determination you were not medically appropriate for RIS
consideration, and a recommendation was made to re-visit your case again in 3 months. On
October 18. 2011, your case was deemed medically appropriate for RIS consideration and moved
forvyard in the~ RIS procEiss.
fon.yard
proc~ss . A multi-disciplinary team of medical, case management,
management, legal, and
I,.. SOCial
social· work staff reviewed the totality of your case and made a recommendation to the Warden for
l') your RIS request to be denied due to the nature of your criminal offense and the risk of
re-offending.. An updated review of your case did not reveal a significant change in your situation
re-offending
or condition Since
since our last review.
review. ci.)j
ci-)j
r I..~
i.~

'1
J
f/

.,

Regarding your request for a mdio~ to.be fi~~ with the District 'court,
court, your case has been reviewed
J at every level within the~ltion with fl21ensive
~ensive reviews as it relates to P.S.
P.S. 5050.46
the~tion

Compassionate Release.
Release . Your request for Compassionate Release has been denied
denied..
If yo
youu are dissatisfied with this response, you may appeal to the Regional Director,
Director, Federal Bureau
of Prisons, Mid-Atlantic Regional Office, 302 Sentinel Drive; Suite 200, Annapolis Junction, MD
20701,
20701 . Your appeal must be received in the Regional Office within 20 calendar days from the
date of th
this
is response .

?fo/m'1-?foI!m"'-

Date

42

10 ,13 : 40 FA~
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202 30 54577
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y,,~r letter
Juted March \3, 2008, snd
ofCicc: ""
,cquc51 10
N rel••
undllT Ihe
Ih.
~O()8. wherein you ,cquoS!
10 be
•••~
cd under
t~ C)()mpas.~ional~
comra.,,~ional. rel.cse
rel.ase p'<>gram
program l\3.«u
bo.«u un In.
SlalC lIlot
th.t >"u would .ikoto
,ike TO b.
b<
'''ndili"n of~'our dll"lJht.'t
dau(iht." who i. dying ol'Nnin
oft-min c"nce,.
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Ihe custody
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,~I
clJSlody of yl'U'
~J siitu-in-l
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You further
that you will b<
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fUrlher 'IOlt Ihal
be able 10
lu find
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indll~tr)' .
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~kill. oS ,~ ,iounl<'yman
dl'Y·".JJ indll"'J')',

".Ie

in cu.~conJancc
C\I:cordanc~ u-ilh
50~O.46. ('fJmp3.~sionat~
('fJmp.:l:isionat~ Rd
..'tlS~·;
wilh pmgrnm
program stah!'ment
stll~ment 5050.46.
Rdt:;lSl.
.. ; J'mclo'ttun"$
J'mclo'dun:$ fvr
Iml'lemomlatltln of 18 l',!>,C'.
l l,!>.('. "82
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1.,,)'& .205
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."1"" '"4"0'1
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ti,lIl)\\in{l, tU<1ors
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und ),'ur=.
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tile. I'hc
('he I'blluv.in(t
used in'con.id.rinsynur
in · c(ln~icJc!rins.;:nnr rc~uc!<1
rc~UI!!o :

too

)'ou armcll
arnwll "'<he f"J.I'~ll'rl>'On
Yank,on, ,~O,
SO, on August
t<l l'urtlcipaw
~.rtlciralcl in ,he
f"J.I'~ll'rison "lUnp
ClImp is! )'aM'''",
AUgusl 9, :lO07,
2007. (0
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t\b""ol'ro8flll"
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$"D!<:ocin~ C"UM,
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I'rogram (RDAPI
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•• ~ml!l.ndell by
b)' til.
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mu"th." incan
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llvC1' yar!\
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U'l ton~,\\'
f<tn~,\\' for
t\) p(l.~'i'::'iJ9
ilnd di$tribmc
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S. 2007.
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,,(,m:fpira~~
..m~pirat:~ hl
pf,l.~fr'::'i'N ".ad
di~tributc m4.·t~mphcl~mint.
()~lohor I15.
w~t\! I,)Jli.:rC!'d
Mli.:rC!'d
pu.rtidpillit'n
poInh:ipuLiVh lltalirtg
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tl.lt
fluttid~'illi"n in RnA!».
RDA!». TI\lwc\,er,
However. }t\U decline-a
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iln)'
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..point gun tenhal"1cement.
~nhallcement, i'll\J
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an ~,'\tC:n'lli\'c
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dm~ 41ft'
4Ift'~lIur
joi~l~n~~ hecaullV
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...o.p\,linl
h:I\C: 'm
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«iminol hi~lol)' anrinj,t
bu<k I" 1994
~i",ol)' oj' :15saull.
arte"" c~r<'"
c~,ol",.
crimu,al
dnlin~ hu<k
19'>4 "I\ich
\\l\lch includos,
includes , ~j",ot)'
:15,aull. rresisling
•• I,ting "".,n,
..
"ri\'ln~. "nil
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ion of A
...,.luo "i'
"I' <WIldl)
Uead/) "":opon.
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anll 1~1,'n)' ""
...... inn
~ flr.amt
l1r<arm atncndell
aencnded 1\1
I" .n.mpted
."~mp(c:d p"
p<'$~."'"n
You
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re~KJl' in lh~
th~ lim:uln10maha,
lim:uln10mnha. N'ubrnsku
"ou n3\'('
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N'cbrn$kn life'&!.
UfC'U.
Y\I\I aO:'
'our child t'uppon
a~ mnr~
mor~ th;m S~I~;\'OO
S~I~~,OO in ;t~!I(S
3~!atS In
In >
Y(lUr
Jl,1.1ppon pS)'l'nent'i.
ps)'ment.. , MorC(lvcr,
MorC(l\'cr, y~)ur wages
WU8CS
"\"~n!
... g.mlsh,"Il'
for n"ilpa)'m~nt
,,( chile!
F~d.rcl aur~m,l
aur~" ..
guntishloU"(or
nLlllpaym~nI n(
dtllcJ support prior 10 y~UT
your ine=<rlllicn
ine3t'Crnd'ion i11lho
it! Ihf' Fctdll!rol
uk' Prison.';,
.u.:lj"it) "'hc:n
)\-h¢n ),UU hnd
had :full,.'
~vl".. I.'u~h.)(.]~
Y~)\1r
Ill'
Prjscm~. And finally.
rir1uify. you 'A c:n:
~re en~1!td
en~1!~d in criminal
criminul .u:livit)
I.'U!4h.)(./~ uf
uJ' Y~)\lr
III"
tI~u~!crs,
1\111 u~utiltICI'"'

"r

<"..

or

&~~U "n
nn tho
th~ a'("~m.nli~nc~,
nnd ',
•• IO
wo",Urtl
Ba~~u
"'("~m~nti~nqll. t CWlll,'1
UWlll<,( liM
.:.~Iraordjnll{)'
traordinllt)' or oompc:Uin~
oom!NUin~ ,lre\llTlSlaI1C
':lrcIll1'lSl~I1C.'
to WOrTUrtl
rtl.:~'mm(ndln~ o.ppn)\
enOm'wu.1J compl'U)~lnn
rtc.:~'mm(ndin~
a.ppn)\ 111 of )'t'lur r:qlJe~t for compB!l~unatc:
tompo:s~unat~ r~lease.
r~lt!:as" I ha.v!!
hu,vt cnom'\mL'I
compJ'U)~lnn
tor your d)inll
d}ing \J~I,J~htcr.
H(.l\\-="~r. )'uur
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lJ1nl~h.!.11
d'HJ~htcr. Ht)\\-:\'~r,
situatiun is
lh~r in\.~nxratcd

silWltions.
,n simila,
similar .iIWltion.,

tdth"u~h )),ou
'oll ",..
""' nol
ulf~ibl.lbr'
tdlhou~h
nOI ellgibl./or.

fur)ougJ! duo 10
tn )'ourcriminaJ
)'our criminal hiSl"!)',
hf,~,'I')·. J
furJ"ugll

hav,-:
!h:.m th.rc:\'
l1ip~ (or bl!dJide:
b~d$ide: ,,.jslrs
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th.rc:~ cs<.'orted
cs<.:oned trip!!!
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~ llur unit
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all~lw )'(.1\.1
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whicb wore wilhin
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d~~'~, Ithaw
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al'< nOI J<:]listl<d withIN' ""run,., )"U n,QY 11I.,n ul'p~al with tho Re&i<ln.1 Di"'<:I\lr,
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43

5

3

!II I I i3C;

i!
- - Fi d 12/14/10

~niat~ative
~ni5t~a~iv.

Remedy
Rem.dy No.

99 60f6
60f6

Pg 10 6236

SlS290~A2
S15290~A2

Part B - a.spoa
RaspoQ ••
This is in response eo
to your Central Office Administrative Remedy
Appeal in which you reqUest a reduction in sentence (RIS) 50
BO you
may return home to care for your mother who has ·been diagnosed
~ith.dementia.
~hild and the only
with
.dementia. You indicate you are an only child
person who can
Clln care for her.
.
'Title
Stlltes Code, Section
3582 (c) (1) (Al
(A) (i),
Title 18, united Statss
section 3582(0)
Ii), gives the
Director of ths
the Bureau of Prisons (SOP) the statutory authority
and discretion to motion the sentencing court to reduce an
inmate'. term of impri~onment if there are "extraordinary or
compelling" Circumstances. Program Statement 5050.46,

Progedlullsp '9
to;\on 9& 1S
is Ut§,e,
Ut S. C
compassionate aelaafte·
Relaa§e" Procedure,
.. Im,pl«mentat,
Im,pl'mentat,:1on
3582(c)
(~) (A),
(AI, provides that a R.
RIS
recommended when
3582
(pI 0,)
I S may be recolMlended
1

§

"particularly extraordinary or compelling circumstances
there are ·particularly
toreeeen by the court at the
which could not reasonably hAve
have Deen to.eseen
time of sentencing." The SOP
BOP generally restricts the application
the statute to 1nmaces
inmaces who have been diagnosed
with a terminal
of che
dia~noseQ With
teominal
illness with a life expectancy
expectanoy of one year or less,
lees, or a
thac
profoundly debilitating and irreversible medical condition that
.everely
severely limits the inmate's ability to attend to fundamental
bodily functions and personal care needs without substantial
assistance from others.
othere.
Wa~den and Regional Oireotor
Director were
The deai.ions
deaisions of the Warden
appropriate. Your health is stable and you have not been
diagnosed with any medical condition chat
that would ~alify
qualify you for
RIS con,ideracion. While the sentencing court
courc may not have
bave
foreseen your mother's medical condition, family hardship is
ie an
unfortunate consequence
a8sess1ng the
oonsequence of incarceration. In a8sessing
appropriateness of a RIS in this ca.e,
caee, family hardship 1.
ie not
extraordinary o.
or compelling in a manner thae
that would support a RIG.
RIS .

Accordingly, your appeal iii!
is den.ied.

1\
Harrel
Admin~str~tor
atts, Admintstr~tor
Nacional Inmate Appeals .!,IJ
'! '~

44

U.S. Department of Justice
Federal Bureau of Prisons
Federal
FfldefBl Correctional Comp/ex
Complflx
Federal Medical Center
F6df1ral
P.
O. 60x
Bo< 1600
P.o.
27ti09
Butner. NC 27509

DATE:

November 30.
30, 2011

REPLY TO
ATTN OF:
OF: Sara M. Revell,
Revell. Complex Warden
SUBJECT:
SUBJECT:

TO:

Reduction in Sentence

~-O39

On November 3. 2011,
2011 , the Reduction in Sentence Committee met to review your
request for Reduction in Sentence. The committee reviewed your history and other
information .
sources of collateral information.
cond~ion, including
The medical team provided information about your medical condition,
information about the course. treatment and severity of your illness. You initially
presented in August 2009 with
w~ mediastinal masses and pleural lesions. You had a
bronchoscopy. a right thoracoscopy and an excision of the mediastinal mass for biopsy
bronchoscopy,
The biopsy was consistent with'a lymphocyte predominant tumor. The mass was
subsequently diagnosed as a malignant thymoma as you developed myasthenia gravis
after the surgery.

You were evaluated by the Oncology Primary Care Team and presented to the FCC
Butner Tumor Board after arrival at FMC Butner. After an extensive work-up.
work-up, you have
a diagnosis of stage IV 2B metastatic thymoma
thymoma.. You were initially treated with Cisplatin
and Etoposide. and most recently you have received Gemcitabine. You are on
Mestinon for your myasthenia gravis and multiple
riluHiple other medications for coronary artery
(GERO) ., diabetes
disease (status post stents) ., gastroesophageal reflux disease (GERD)
mellitus. and hyperlipidemia. You have had episodes ot
of myasthenia gravis
exacerbation requiring IVlG infUSion.
infUSion. You are currently ambulatory and housed on an
living . The medical
outpatient unit. You are able to care for your daily activities of daily living.
detemnined that you have a poor prognosis due 10
oncologist determined
to the advance stage of your
cancer.

45

The case manager provided a review of the material contained In your Preser'ltence
InllGBtigation Report (PSI) and discussed your institutional adjustment. You are a LOW
InliGatigation
security level inmate with IN custody. You were convicted of International
Intemational Emergency
Economic Powers Act and are serving a 46 month sentence with two years' supervised
ir'lcarceration.. According to
release. You have received no incident reports during your ir'lcarceration
your Presentence Investigation Report (PSI), your prior criminal
crimina! history includes 1981 Aggravated Assault and 1983 - Carrying a Concealed Weapon.
The medical social worller
worker reviewed
revieWed your proposed release plan. The SOCial
social worller
worker
explained your support system ~ur
~r wife,~nd family.
Through a telephone intervlew, _ _ _eporled
eported a willingness to act as your
caretaker. She indicated she would Insure you would receive appropriate medical
medica! care,
financed.
and shared how the care would be financed.

Committee Recommendation
However, the Committee
Overall findings indicate your medical condition is serious. However,
recommends denial of your request for reduction in sentence due to the nature of your
criminal offense and your ability to reoffend.
Warden 's Decision
Warden's

"m~if))~U7et/Ut~ /r.t-~p;~
"~~iIJ)~U1et!Ut~
/t.t-~~~
/;j~.AA1

cc: AW
Medical Records
Unit Team

.

46

,

THE ANSWER IS NO
Too Little Compassionate Release in US Federal Prisons
In the United States, federal prisoners who are dying, incapacitated by illness or age, or confronting other “extraordinary and
compelling” circumstances may be eligible for early release from prison. However, last year only 30 out of 218,000 prisoners
received such compassionate release, and prior years have yielded equally small numbers. “The Answer is No: Compassionate
Release in US Federal Prisons” details how and why the federal Bureau of Prisons (BOP) refuses to make the court motions
necessary for compassionate release, leaving prisoners behind bars even when their continued confinement is senseless and
inhumane.
Congress gave federal courts the authority to decide whether a sentence reduction is warranted in individual cases, taking into
account the prisoner’s circumstances, the nature of his offense, the likelihood of him reoffending, and other factors. But the
courts can only consider releasing prisoners whose cases are referred to them by the BOP. Based on legal research, extensive
interviews, and the analysis of scores of cases, this report reveals how and why the BOP substitutes its judgment for that of the
courts. It only makes motions to the courts for sentence reduction for prisoners who meet stringent medical criteria and who, in
the BOP’s view, deserve compassionate release.
Human Rights Watch and Families Against Mandatory Minimums urge the BOP to limits its role in compassionate release to
screening requests for eligibility, so that the final decisions about early release are made by independent and impartial federal
courts, rather than executive branch agencies. The report also recommends that the Department of Justice support a more
generous interpretation of compassionate release, and it urges Congress to permit prisoners to take their cases directly to the
courts after they have exhausted administrative remedies within the BOP.

www.hrw.org | www.famm.org

 

 

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